Opinion
2002-09711.
Decided June 12, 2004.
In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Patterson, J.), dated September 25, 2002, which, after a jury trial, and upon granting the defendant's motion pursuant to CPLR 4401 made at the close of the plaintiff's case to dismiss the complaint for failure to establish a prima facie case, is in favor of the defendant and against her.
Fellows, Hymowitz Epstein, P.C., New City, N.Y. (Steven R. Hymowitz of counsel), for appellant.
Goetz Fitzpatrick, LLP, New York, N.Y. (Ellen August of counsel), for respondent.
Before: ANITA R. FLORIO, J.P., SANDRA L. TOWNES, BARRY A. COZIER, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The proper legal standard for deciding a motion pursuant to CPLR 4401 is whether, granting the plaintiff every favorable inference from the evidence submitted, there was any rational basis upon which a jury could have found for the plaintiff ( see CPLR 4401; Biggs v. Mary Immaculate Hosp., 303 A.D.2d 702; Prestia v. Mathur, 293 A.D.2d 729).
The Supreme Court properly granted the defendant's motion pursuant to CPLR 4401 to dismiss the complaint. Despite expert testimony that the defendant departed from good and accepted medical practice in failing to diagnose or treat the plaintiff's condition, there was no evidence connecting this departure to the plaintiff's subsequent injury, thereby inviting speculation by the jury ( see Biggs v. Mary Immaculate Hosp., supra; Migliaccio v. Good Samaritan Hosp., 289 A.D.2d 208; Pellew v. Goldstein, 279 A.D.2d 512; Lyons v. McCauley, 252 A.D.2d 516; cf. Hanley v. St. Charles Hosp. and Rehabilitation Ctr., 307 A.D.2d 274).
FLORIO, J.P., TOWNES, COZIER and MASTRO, JJ., concur.