Leff v. Soley

In a medical malpractice action, plaintiffs appeal from an order of the Supreme Court, Westchester County, entered April 24, 1979, which denied their motion, inter alia, to set aside the jury verdict, which was against them and in favor of the defendant. We deem the notice of appeal to be a premature notice of appeal from the judgment which was entered on the verdict on July 18, 1979 (see CPLR 5520, subd [c]). Judgment affirmed, with costs. Under the circumstances of the instant case, the trial court properly refused to instruct the jury on the doctrine of res ipsa loquitur (see Pipers v Rosenow, 39 AD2d 240, 243-245 [opn by Hopkins, J.]; see, also, De Falco v Long Is. Coll. Hosp., 90 Misc 2d 164, 168, affd 62 AD2d 1180). We have considered appellants’ remaining contentions and find them to be lacking in merit. Damiani, J. P., Gibbons, Gulotta and Weinstein, JJ., concur.