Opinion
Argued February 8, 1982
Decided March 30, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, ALFRED M. ASCIONE, J.
Robert G. Harley for appellant.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Bernard Abel of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The evidence was insufficient to form the basis for a jury award of damages for conscious pain and suffering. Mere conjecture, surmise or speculation is not enough to sustain a claim for damages. There was no direct proof of the cause of the decedent's death and, more importantly, there was no proof of conscious pain and suffering in connection with that death. Moreover, we find the record to be insufficient to support a finding that decedent experienced increased pain while at the hospital as a proximate result of the treatment which he received.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed, with costs, in a memorandum.