Contorino v. Florida Ob/Gyn Ass'n , 686 N.Y.S.2d 88 ( 1999 )

In an action to recover damages for medical malpractice, etc., the defendant Arden Hill Hospital appeals from a judgment of the Supreme Court, Orange County (Bellantoni, J.), entered August 12, 1997, which, upon a jury verdict, and upon the denial of its motion pursuant to CPLR 4404 to set aside the verdict and for a new trial, is in favor of plaintiffs and against it in the principal sum of $5,550,000.

Ordered that the judgment is affirmed, with costs.

The jury verdict in favor of the plaintiffs is rational (see, Cohen v Hallmark Cards, 45 NY2d 493, 499), and is based upon a fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129).

Contrary to the appellant’s contentions, the trial court properly denied its motion for a missing witness charge as to both the infant plaintiffs current treating physicians and an expert pathologist whom the plaintiffs originally planned to call as a witness. The appellant failed to establish that the uncalled witnesses possessed information and knowledge about the malpractice which was more than merely cumulative to the testimony of the witnesses at trial and to the medical records received in evidence (see, Colezetti v Pircio, 214 AD2d 926; Kane v Linsky, 156 AD2d 333).

We further find that the verdict on the issue of damages did not deviate materially from what would be reasonable compensation for the injuries suffered (see, CPLR 5501 [c]; Rivera v City of New York, 160 AD2d 985; O’Connor v Graziosi, 131 AD2d 553).

The appellant’s remaining contentions are either unpreserved for appellate review, without merit, or do not require reversal. Miller, J. P., Thompson, Friedmann and Florio, JJ., concur.