[*2]The following papers numbered 1 to 5 Read on this motion, to set aside a portion of the jury verdict.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion

to:Papers Numbered

Notice of Motions and Affidavits Annexed............................1

Answering Affidavits and Notice of Cross Motion................2-3

Replying Affidavits ....................................................................4-5

Memorandum of Law ...............................................................

Other:

Upon the foregoing papers, the foregoing motion(s) [and/or cross-motions(s), as indicated below, are consolidated for disposition] and decided as follows:

Plaintiff's motion pursuant to CPLR 4404(a) for an Order setting aside that portion of the jury's verdict which found no proximate cause for plaintiff's injuries, despite finding that defendant, Montefiore Medical Center, (Montefiore), departed from good and accepted medical practice, and for an order directing a trial on damages, is denied.

On January 29, 2013, the jury herein rendered a verdict in which it answered "Yes" to the following question:

1. Did defendant Montefiore Medical Center, through the conduct of its health care professionals including nurses and surgical technicians, depart from good and accepted medical practice by causing and permitting the knot pusher tip to be and remain in plaintiff's body following the May 17, 2007 surgery?

The jury answered "No" to the following question:

2. Was this departure in allowing the knot pusher tip to remain in plaintiff's body a substantial factor in causing and/or contributing to plaintiff's injuries?

The vote for both questions number 1 and number 2 was 6-0, and all six jurors signed the verdict sheet and each juror individually ratified the verdict during the polling of the jurors. The jurors also sent a note stating the following:

Although we've reached a verdict, we believe that Mr. Sirkishun should be compensated due to the fact that he had to undergo a second surgery, which was not included in the agreement. He should be compensated $50,000 due to the hospital's negligence.

The jurors unanimously determined that any negligence on the part of Montefiore was not a proximate cause or substantial factor in causing plaintiff's injuries. The juror's preference to award plaintiff $50,000, did not entitle plaintiff to a re-submission of the issue of proximate cause to the jury, nor does it require a trial on damages. Such a ruling would only encourage jury nullification of the requirement that any negligence on the part of a defendant must be the [*3]proximate cause of plaintiff's injuries before a jury can award compensation to a plaintiff. Pavlou v City of New York, 21 AD3d 74 [1st Dept 2005])

While the jury may have wanted to award damages to plaintiff on some theory of its own, it clearly understood that [defendant's] negligence was not a substantial factor in causing plaintiff's injuries ( see Mayer v. Goldberg, 241 AD2d 309, 312, 659 N.Y.S.2d 877 [1997] ).

(Ruiz v. Summit Appliance Div, 92 AD3d 429, 430 [1st Dept 2012].

Plaintiff argues that the mere fact that a recovery surgery to remove a knot pusher tip left behind in the first surgery was performed, necessarily means that the negligence of Montefiore was a substantial factor in causing injury to plaintiff. However, there was medical testimony that the second surgery did not cause any injuries that were separate and distinct from the injuries sustained in the initial surgery that removed plaintiff's kidney. The jury's judgment regarding which medical expert to credit, and which medical expert to discredit, is properly the province of the jury.

Plaintiff argues that Matter of Staley v Piper, 285 AD2d 601 [2nd Dept 2001], stands for the proposition that there necessarily are damages when a second surgery is performed to remove a foreign body negligently left in a patient's body. However, Staley is a late notice of claim case, which is entirely inapposite to the issues herein.

This constitutes the decision and order of the Court.

Dated:

J.S.C.