## Facts

- Alexander Nicastro, age 35, was hospitalized twice for chest pain: first in May 1976 and again in February 1977.
- During the first hospitalization, Dr. Fred Eugene Park treated Nicastro as the attending physician, and Dr. Richard H. Mermelstein served as a consultant.
- Nicastro died in July 1977 from a coronary thrombosis caused by occlusive coronary atherosclerosis.
- Dorothy Nicastro, individually and as administratrix of the estate, brought a medical malpractice and wrongful death action alleging negligent diagnosis and treatment by Park and Mermelstein that resulted in Nicastro’s death.
- At trial, plaintiff’s proof indicated that Mermelstein diagnosed Nicastro as suffering from a virally induced condition (pleurodynia) even though test results were, at best, inconclusive and Nicastro lacked symptoms commonly associated with that viral condition.
- Plaintiff’s proof also indicated that during the first hospitalization Park failed to follow up on test results (including electrocardiograms and other reports) that suggested Nicastro was developing a cardiac infarction, and that Park did not counsel Nicastro—described at trial as a heavy smoker and coffee drinker whose work involved physical labor—to modify his lifestyle.
- Plaintiff further contended that during the second hospitalization Park did not order appropriate additional testing and discharged Nicastro without adequate treatment for a coronary condition.
- Defense medical witnesses testified that the defendants’ care met accepted standards, but conceded that the test results were inconclusive, that additional testing would have been helpful, and that Nicastro did not appear to have been treated for a coronary problem.
- By the time of trial, both physician defendants had died (Mermelstein before the action began; Park after the action began but before trial), and the case was tried largely through hospital records, other documents, portions of Park’s pretrial testimony, and competing medical witnesses.
- The jury returned a special verdict finding that neither Park nor Mermelstein was negligent; because the jury found no negligence, it did not reach proximate cause questions.
- Plaintiff moved under CPLR 4404(a) to set aside the verdict as against the weight of the evidence and for a new trial; the trial court granted the motion and ordered a new trial.
- The estates of Park and Mermelstein appealed from the order granting a new trial.

## Issues

1. Under CPLR 4404(a), when may a trial court set aside a jury verdict as against the weight of the evidence and order a new trial?
2. Did the trial court abuse its discretion in setting aside the jury’s “no negligence” verdict and ordering a new trial in this malpractice and wrongful death action?
3. May the appellants defeat the new-trial order by arguing lack of proximate cause when the jury never reached causation after finding no negligence?

## Decision

- The Appellate Division, Second Department, affirmed the order granting plaintiff a new trial.
- The court held that the trial court did not abuse its discretion in determining that the verdict finding no negligence could not be reached on any fair interpretation of the evidence.
- The court rejected appellants’ focus on proximate cause because the jury never reached that issue, and the plaintiff’s proof made out at least a prima facie showing of causation.

## Legal Principles

- A trial court may set aside a jury verdict as against the weight of the evidence when the proof so favors the moving party that the verdict could not have been reached on any fair interpretation of the evidence.
- A CPLR 4404(a) weight-of-the-evidence ruling is discretionary; an appellate court will not disturb it absent an abuse of discretion.
- When the jury finds no negligence and therefore does not answer proximate cause questions, appellate arguments aimed at proximate cause do not justify reversal of a weight-of-the-evidence order granting a new trial, so long as the plaintiff presented a prima facie case on causation.
- In malpractice cases tried largely on documentary medical proof and competing medical testimony, the trial judge’s evaluation of the record may support ordering a new trial where the jury’s no-negligence findings cannot be reconciled with the trial evidence.

## Conclusion

Nicastro v. Park affirmed a trial court’s CPLR 4404(a) order granting a new trial after a jury found no negligence in a malpractice and wrongful death case involving missed or inadequately addressed indications of cardiac infarction; the Appellate Division held that, given the documentary and medical testimony, the trial judge acted within discretion in concluding the defense verdict was against the weight of the evidence, and appellants’ causation arguments did not warrant reversal because the jury never reached proximate cause and plaintiff made a prima facie causation showing.


Nicastro v. Park, 113 A.D.2d 129, 495 N.Y.S.2d 184 (1985)