LaPIERRE v. Alan Multz, etc., et al., respondents.

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Supreme Court, Appellate Division, Second Department, New York.

Patricia LaPIERRE, etc., et al., appellants, v. Allen D. EFRON, etc., et al., defendants, Alan Multz, etc., et al., respondents.

Decided: October 31, 2005

ROBERT W. SCHMIDT, J.P., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN, and JOSEPH COVELLO, JJ. Salenger, Sack, Schwartz & Kimmel, LLP (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J. Isaac and Christopher J. Crawford] of counsel), for appellants. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Steven J. Ahmuty, Jr., Timothy R. Capowski, and Robert M. Ortiz of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Queens County (Schulman, J.), entered June 9, 2004, as, upon the granting of the motions of the defendants Alan Multz and Long Island Jewish Medical Center pursuant to CPLR 4401 for judgment as a matter of law at the close of the plaintiffs' case, dismissed the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed insofar as appealed from, with costs.

The proper legal standard for deciding a motion pursuant to CPLR 4401 is whether, giving the plaintiffs every favorable inference from the evidence submitted, there was any rational basis upon which a jury could have found for the plaintiffs (see CPLR 4401;  Godlewska v. Niznikiewicz, 8 A.D.3d 430, 779 N.Y.S.2d 79;  Hughes v. New York Hosp.-Cornell Med. Ctr., 195 A.D.2d 442, 443, 600 N.Y.S.2d 145).

The Supreme Court properly granted the respondents' motion pursuant to CPLR 4401 to dismiss the complaint insofar as asserted against them.   Although there was expert testimony that the respondents' treatment of the decedent was a departure from good and accepted medical practice, the expert testimony presented by the plaintiffs on the issue of causation was insufficient for a reasonable person to conclude that it was more probable than not that the decedent's death was caused by the respondents (see Abrams v. Ho, 3 A.D.3d 544, 770 N.Y.S.2d 638;  Migliaccio v. Good Samaritan Hosp., 289 A.D.2d 208, 733 N.Y.S.2d 713;  Healy v. Spector, 287 A.D.2d 541, 731 N.Y.S.2d 740;  Kennedy v. Peninsula Hosp. Ctr., 135 A.D.2d 788, 792, 522 N.Y.S.2d 671).

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