SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

716 

CA 10-02280 

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, AND GREEN, JJ. 

 

 

WILLIAM G. SWAVELY, AS EXECUTOR OF THE ESTATE 

OF LORRAINE M. SWAVELY, DECEASED, 

PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

ZHANDONG ZHOU, M.D., AND CARDIAC SURGERY 

ASSOCIATES OF CNY, P.C., DEFENDANTS-RESPONDENTS. 

 

ROBERT E. LAHM, PLLC, SYRACUSE (ROBERT E. LAHM OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (GEORGE F. MOULD

OF COUNSEL), FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from a judgment of the Supreme Court, Onondaga County

(James P. Murphy, J.), entered August 25, 2010 in a medical

malpractice action. The judgment dismissed the complaint upon a jury

verdict of no cause of action. 

It is hereby ORDERED that the judgment so appealed from is

unanimously reversed on the law without costs, the post-trial motion

is granted, the verdict is set aside, the complaint is reinstated and

a new trial is granted. 

Memorandum: Plaintiff, as executor of the estate of his mother

(decedent), appeals from an order in this medical malpractice action

denying his motion pursuant to CPLR 4404 (a) seeking to set aside the

jury verdict as inconsistent and against the weight of the evidence. 

Decedent died after the right ventricle of her heart was lacerated

during a pericardial window procedure (hereafter, surgery) performed

by Zhandong Zhou, M.D. (defendant). The jury determined that

defendant was negligent but that his negligence was not a substantial

factor in causing decedent’s death. We note at the outset that the

order was subsumed in the final judgment, from which no appeal was

taken. In the exercise of our discretion, however, we treat the

notice of appeal as valid and deem the appeal as taken from the

judgment (see Cowley v Kahn, 298 AD2d 917; Hughes v Nussbaumer, Clarke

& Velzy, 140 AD2d 988; see also CPLR 5520 [c]).

Turning to the merits, we conclude that Supreme Court erred in

denying plaintiff’s motion. According to plaintiff, defendant was

negligent in performing the surgery inasmuch as he “tore the

decedent’s right ventricle[,] leading to massive bleeding, cardiac
-2- 716 

CA 10-02280 

arrest and anoxic brain damage.” Plaintiff presented expert testimony

to support that allegation, and defendant countered with contrary

expert testimony. In finding that defendant was negligent, the jury

presumably credited the testimony of plaintiff’s expert on that issue

and, here, “the issues of negligence and proximate cause were so

inextricably interwoven as to make it logically impossible to find

negligence without also finding proximate cause” (Rubin v Pecoraro,

141 AD2d 525, 527). We therefore conclude that the verdict could not

have been reached upon any fair interpretation of the evidence because

defendant’s negligence necessarily contributed to the death of

decedent (see Ahr v Karolewski, 32 AD3d 805, 806-807; see also Brenon

v Tops Mkts. [appeal No. 2], 289 AD2d 1034, lv denied 98 NY2d 605). 

Although one of plaintiff’s expert witnesses testified concerning

several distinct acts performed or omitted by defendant during the

surgery, plaintiff established a single instance of malpractice, i.e.,

the negligent performance of the surgery, during which defendant

punctured decedent’s heart and thereby caused her death. Thus, “[t]he

jury’s findings that the defendant . . . departed from accepted

medical practice in performing surgery on [decedent], but that the

departure was not a proximate cause of [decedent’s death], was against

the weight of the evidence since the issues are so inextricably

interwoven as to make it logically impossible to find a departure

without also finding proximate cause” (Lader v Sherman, 58 AD3d 809,

809; see Calderon v Irani, 296 AD2d 778, 778-779).

Entered: July 8, 2011 Patricia L. Morgan

Clerk of the Court