Practice Reminders

1. Frenchman v. Westchester Medical Center provides an important practice reminder that the failure to raise an inconsistency prior to the jury being discharged renders the issue unpreserved for appellate review.  In Frenchman, the Second Department also affirmed awards of $1,000,000 for past pain and suffering, $150,000 for past loss of services, $450,000 for past wrongful death damages, and $110,000 for future wrongful death damages in a medical malpractice case.

2. McConnell v. Santana highlights the absolute necessity that a party move for a judgment as a matter of law at the close of evidence to preserve a challenge to the sufficiency of the evidence on appeal.  The Second Depatment held, "[t]he defendants failed to preserve for appellate review their argument that they are entitled to judgment as a matter of law on the issue of negligence on the ground that the plaintiff failed to establish proximate cause. By failing to move pursuant to CPLR 4401 for judgment as a matter of law on the issue of negligence at the close of the evidence, the defendants implicitly conceded that the issue was for the trier of fact. Accordingly, the matter must be remitted to the Supreme Court, Richmond County, for a new trial solely on the issues of whether the plaintiff's decedent was at fault in the happening of the accident and whether such fault was a proximate cause of the accident."

3.  In Santana v. Vargas, the Second Department held that marking a case as "settled" is not the equivalent of having the case "marked off" or stricken from the calendar.  CPLR 3404, therefore, did not apply where the plaintiff sought to restore the action.