Physicians and Surgeons - Malpractice - Jury Verdict in Favor of Defendants - Weight of Evidence

Appeal from a judgment of the Supreme Court, Erie County (Kelly A. Vacco, J.), entered February 16, 2024. The judgment dismissed plaintiffs' complaint upon a jury verdict in favor of defendants.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action, plaintiffs appeal from a judgment dismissing the complaint upon a jury verdict rendered in favor of defendants. We affirm.

We reject plaintiffs' contention that the verdict is against the weight of the evidence (see generally McClain v Lockport Mem. Hosp., 236 AD2d 864, 865 [4th Dept 1997], lv denied 89 NY2d 817 [1997]). Conflicting expert testimony presents a credibility issue and resolving "that conflict is a matter peculiarly within the province of the jury" (Regelski v Weber, 209 AD2d 965, 965 [4th Dept 1994] [internal quotation marks omitted]). It cannot be said that the evidence so preponderated in favor of plaintiffs that the verdict could not be reached upon any fair interpretation of the evidence (see Peevey v Unity Health Sys., 196 AD3d 1139, 1141 [4th Dept 2021]; Root v DiRaddo, 302 AD2d 987, 988 [4th Dept 2003], lv denied 100 NY2d 504 [2003]). Contrary to plaintiffs' further contention, Supreme Court did not abuse its discretion in refusing to admit in evidence a photograph offered by plaintiffs (see Graney v Ryan, 19 AD3d 1172, 1172-1173 [4th Dept 2005]). Additionally, plaintiffs failed to preserve their contention with respect to the jury's receipt and use of revised verdict sheets (see Schmidt v Buffalo Gen. Hosp., 278 AD2d 827, 828 [4th Dept 2000], lv denied 96 NY2d 710 [2001]). We also reject plaintiffs' contention that the jury's receipt and use of revised verdict sheets is a fundamental error that warrants reversal despite the alleged lack of preservation (see id.; see generally Breitung v Canzano, 238 AD2d 901, 902 [4th Dept 1997]). Nothing in this record indicates that the jury was confused or prevented from fairly considering the issues (see Aguilar v New York City Tr. Auth., 81 AD3d 509, 510 [1st Dept 2011]; Klein-Bullock v North Shore Univ. Hosp. at Forest Hills, 63 AD3d 536, 537 [1st Dept 2009]; cf. Breitung, 238 AD2d at 902). Present—Lindley, J.P., Curran, Bannister, Ogden and DelConte, JJ.