Nancy Aviles v New York City Health & Hospital Corporation

Estate of Aviles v New York City Health & Hosps. Corp. 2004 NY Slip Op 01537 [5 AD3d 432] March 8, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

Estate of Nancy Aviles, Deceased, by Melinda Nazario, as Administratrix, Appellant,
v
New York City Health & Hospitals Corporation, Respondent.

—In an action to recover damages for wrongful death based on medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Garry, J.), entered October 24, 2003, which, upon an order of the same court dated September 25, 2000, granting the defendant's motion to dismiss the complaint for failure to establish a prima facie case made at the close of the plaintiff's case, dismissed the complaint.

Ordered that on the Court's own motion, the notice of appeal from the order is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

The Supreme Court properly granted the defendant's motion to dismiss the complaint for failure to establish a prima facie case, made at the close of the plaintiff's case, because there was no rational process by which a jury could have found for the plaintiff and against the defendant (see CPLR 4401; Smith v Hercules Constr. Corp., 274 AD2d 467 [2000]). The testimony of the plaintiff's medical expert was insufficient to establish a prima facie case, as it was internally inconsistent and speculative (see James v Crystal, 267 AD2d 429 [1999]). Santucci, J.P., Florio, Schmidt and Townes, JJ., concur.