Ruth Donovan et al., Appellants-Respondents, v. Barbara Capozzi, as Executrix of Federico Capozzi, Deceased, Respondent-Appellant, et al., Defendants

Ruth Donovan et al., Appellants-Respondents, v Barbara Capozzi, as Executrix of Federico Capozzi, Deceased, Respondent-Appellant, et al., Defendants. [MAJORITY] The plaintiff Ruth Donovan (hereinafter Donovan) was a patient of Dr. Federico Capozzi (hereinafter Capozzi), who died prior to this trial and whose executrix, Barbara Capozzi, was substituted as a defendant. In this action, it was contended, in relevant part, that Capozzi had failed to properly diagnose and treat a cancerous tumor suffered by Donovan, and as a result, there was a delay in surgical treatment of the tumor, causing Donovan to suffer numerous injuries, including the removal of her voice box. The evidence discloses that with regard to the issue of Donovan’s conduct there was a sharp dispute regarding what Capozzi had told Donovan concerning the nature of her physical condition and his instructions to her concerning follow-up treatment of her condition. At the trial, Capozzi’s examination before trial was read to the jury. He claimed, in relevant part, that he had informed Donovan of the serious nature of her condition and the risks if she delayed treatment. Donovan claimed that Capozzi did not give her an accurate description of her condition nor did he impress upon her the urgency of getting prompt treatment. We find that Capozzi’s testimony, corroborated in part by his medical records, was sufficient to warrant submission to the jury of the issue of whether Donovan was partially responsible for her injuries (see, Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 516-517; Chodos v Flanzer, 90 AD2d 838, appeal after remand 109 AD2d 771), and that the jury’s verdict was not against the weight of the evidence (see also, Dunn v Catholic Med. Center, 55 AD2d 597; Quinones v Public Adm’r of County of Kings, 49 AD2d 889). Bracken, J. P., Lawrence, Kunzeman and Harwood, JJ., concur.