Haller v. Gacioch ( 2009 )

Memorandum: Plaintiff appeals from a judgment entered upon a jury verdict finding that, although defendant Gerald M. Gacioch, M.D. was negligent in leaving a cardiac sheath in plaintiffs decedent without administering systemic anticoagulation medication, that negligence was not a substantial factor in causing decedent’s injuries. On appeal, plaintiff contends that Supreme Court erred in refusing to permit-the prior testimony of her expert adduced at a Frey hearing to be read to the jury pursuant to CPLR 4517 (a) (4). We reject plaintiffs contention, because that testimony does not constitute “prior trial testimony” within the meaning of CPLR 4517 (a) (4). In addition, plaintiff failed to object to the verdict as inconsistent before the jury was discharged and thus failed to preserve for our review her present contention with respect to the alleged inconsistency of the verdict (see Lahren v Boehmer Transp. Corp., 49 AD3d 1186, 1188 [2008]), despite having raised that objection in a post-trial motion (see generally Barry v Manglass, 55 NY2d 803, 806 [1981], rearg denied 55 NY2d 1039 [1982]). Present— Centra, J.E, Peradotto, Green and Pine, JJ.