Elzbieta Godlewska v Stanislaw Niznikiewicz

Godlewska v Niznikiewicz 2004 NY Slip Op 05193 [8 AD3d 430] June 14, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Elzbieta Godlewska, Appellant,
v
Stanislaw Niznikiewicz, Respondent.

—[*1]

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.

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 AD2d 702 [2003]; Prestia v Mathur, 293 AD2d 729 [2002]).

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 AD2d 208 [2001]; Pellew v Goldstein, 279 AD2d 512 [2001]; Lyons v McCauley, 252 AD2d 516 [1998]; cf. Hanley v St. Charles Hosp. & Rehabilitation Ctr., 307 AD2d 274 [2003]). Florio, J.P., Townes, Cozier and Mastro, JJ., concur.