Edward McGovern as Guardian ad Litem of Gale E. McGovern, an Infant, et al., Respondents, v. Joseph N. Attie et al., Defendants, and Howard Schalettar et al., Doing Business under the Name of Upper Queens Medical Group, et al., Appellants

Edward McGovern as Guardian ad Litem of Gale E. McGovern, an Infant, et al., Respondents, v. Joseph N. Attie et al.. Defendants, and Howard Schalettar et al., Doing Business under the Name of Upper Queens Medical Group, et al., Appellants. [MAJORITY] In an action to recover damages for personal injuries upon causes for medical malpractice, etc., defendants who are members of the partnership known as Upper Queens Medical Group appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County, entered December 22, 1969, as is in favor of plaintiffs against them, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, without costs; and, as between plaintiffs and the appealing defendants, action severed and new trial granted solely upon the issue of damages. We have considered the questions of fact and we would not grant a new trial upon those questions. We find that the jury’s verdict in favor of the plaintiffs is supported by the proof adduced at the trial (see McGovern v. Attie, 30 A D 2d 559). The trial court, however, failed to clearly instruct the jury, as requested by appellants, that plaintiffs’ recovery should be limited to the damages flowing from the malpractice (the failure to properly treat a rapidly growing tumor) and that appellants were not liable for the inception of the tumor. Hence, a new trial is required upon the issue of damages. Hopkins, Munder, Latham and Shapiro, JJ., concur; Rabin, P. J., not voting.