Johnson v. LCA Vision, Inc. , 727 N.Y.S.2d 674 ( 2001 )

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted plaintiffs request to charge the doctrine of res ipsa loquitur with respect to defendants LCA Vision, Inc. and Claus M. Fichte, M.D. (see, Fogal v Genesee Hosp., 41 AD2d 468, 474-477). In order to establish his entitlement to that charge, plaintiff was not required to eliminate conclusively “the possibility of all other causes of the injury. It [was] enough that the evidence * * * afford [ed] a rational basis for concluding that ‘it [was] more likely than not’ that the injury was caused by [the] negligence [of those defendants]” (Kambat v St. Francis Hosp., 89 NY2d 489, 494, quoting Restatement [Second] of Torts § 328 D, comment e). The award of damages for future pain and suffering for plaintiffs eye injury does not deviate materially from what would be reasonable compensation (see, CPLR 5501 [c]; Galawanji v 40 Sutton Place Condominium, 262 AD2d 55, lv denied 94 NY2d 756). (Appeal from Judgment of Supreme Court, Erie County, Kane, J. — Negligence.) Present — Pigott, Jr., P. J., Hayes, Wisner, Scudder and Lawton, JJ.