Biesiada v. Suresh

Appeal from a judgment of Supreme Court, Erie County (Whelan, J.), entered February 8, 2002, upon a jury verdict in favor of defendant.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff Victoria I. Biesiada when defendant allegedly failed to assist her in transferring a stroke patient from a supine to a seated position. Plaintiffs appeal from a judgment entered upon a jury verdict in favor of defendant. We reject plaintiffs’ contention that Supreme Court erred in allowing defendant to testify concerning her usual practice in transferring stroke patients from supine to seated positions. “Proof of a deliberate repetitive practice by one in complete control of the circumstances” is admissible provided that the party presenting such proof demonstrates “a sufficient number of instances of the conduct in question” (Halloran v Virginia Chems., 41 NY2d 386, 392 [1977]). Here, although defendant had no specific recollection of the incident at issue, her testimony concerning her protocol in transferring stroke patients from supine to seated positions in evaluating their *1246conditions was properly admitted to establish her conduct during the incident at issue (see id.). Present — Pigott, Jr., P.J., Green, Scudder, Gorski and Hayes, JJ.