Nestorowich v. Ricotta

Pigott, Jr., P. J., and Wisner, J.

(dissenting). We respectfully dissent, and vote to reverse and grant plaintiff a new trial. In our view, Supreme Court erred in giving an “error in judgment” charge over plaintiff’s objection. “That charge is appropriate only in a narrow category of medical malpractice cases in which there is evidence that defendant physician considered and chose among several medically acceptable treatment alternatives (see, 1A NY PJI 3d 701, caveat 2 [2001]; see also, Grasso v Capella, 260 AD2d 600, 601)” (Martin v Lattimore Rd. Surgicenter, 281 AD2d 866 [decided…