Alice Cuccia, as Administratrix of Joseph Cuccia, Deceased, Appellant, v. Brooklyn Medical Group et al., Respondents

Alice Cuccia, as Administratrix of Joseph Cuccia, Deceased, Appellant, v Brooklyn Medical Group et al., Respondents. [MAJORITY] In an action to recover damages for wrongful death due to medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Clemente, J.), entered July 6, 1989, which, upon a jury verdict on the issue of liability in favor of the defendants, dismissed the complaint. Ordered that the judgment is affirmed, with costs. At trial, the plaintiff’s counsel attempted to cross-examine Dr. Solomon, a treating physician of the deceased, as an expert witness. The trial court properly prohibited the witness from being cross-examined in this manner (see, Waters v East Nassau Med. Group, 92 AD2d 893). Doctor Solomon, who was a member of the defendant partnership, the Empire Medical Group, at the time the alleged malpractice occurred, but not at the time of trial, had not been named as a defendant. In addition, as trial counsel stressed to the jury in his summation argument, no allegations of medical malpractice were being made as against Dr. Solomon. The present action is therefore distinguishable from McDermott v Manhattan Eye, Ear & Throat Hosp. (15 NY2d 20). We have examined the plaintiff’s remaining contentions, including that the verdict was against the weight of the evidence, and find them to be without merit. Bracken, J. P., Kunzeman, Hooper and Harwood, JJ., concur.