Opinion
2012-10306
11-12-2014
Karen FRANK–SHAEVICH, etc., appellant, v. Kul Bhushan ANAND, etc., et al., defendants third-party plaintiffs-respondents, Rajesh Sriraman, etc., et al., defendants; et al., third-party defendant.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellant. Wilson, Elser, Moskowitz, Edekman & Dicker LLP, White Plains, N.Y. (Robert A. Spolzino, Jay W. Levy, and Eliza M. Scheibel of counsel), for defendants third-party plaintiffs-respondents. Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Valhalla, N.Y. (Kaufman Borgeest & Ryan LLP [Edward J. Guardaro, Jr., and Adam Markovics ], of counsel), for third-party defendant.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellant.
Wilson, Elser, Moskowitz, Edekman & Dicker LLP, White Plains, N.Y. (Robert A. Spolzino, Jay W. Levy, and Eliza M. Scheibel of counsel), for defendants third-party plaintiffs-respondents.
Kral Clerkin Redmond Ryan Perry & Van Etten, LLP, Valhalla, N.Y. (Kaufman Borgeest & Ryan LLP [Edward J. Guardaro, Jr., and Adam Markovics ], of counsel), for third-party defendant.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
Opinion In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiff Karen Frank–Shaevich, as administrator of the estate of Claire Frank, appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Queens County (Hart, J.), entered September 14, 2012, as, after a jury trial, and upon the granting of the motion of the defendants third-party plaintiffs, Kul Bhushan Anand and Parker Jewish Institute for Healthcare & Rehabilitation, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint, is in favor of those defendants and against her dismissing the complaint.
ORDERED that the judgment is affirmed insofar as appealed from, with costs to the defendants third-party plaintiffs-respondents.
A trial court may grant a motion pursuant to CPLR 4401 for judgment as a matter of law where it finds that, upon the evidence presented, “there is no rational process by which the fact trier could base a finding in favor of the nonmoving party” (Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ). In considering the motion, “the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant” (id. at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ).
The Supreme Court properly granted the motion pursuant to CPLR 4401 for judgment as a matter of law in favor of the defendants third-party plaintiffs, Kul Bhushan Anand and Parker Jewish Institute for Healthcare & Rehabilitation, because there was insufficient evidence from which the jury could rationally find that the plaintiff's decedent sustained an injury as a result of the care or treatment by the defendants third-party plaintiffs (see Doland v. Stephenson, 89 A.D.3d 789, 790, 932 N.Y.S.2d 369 ; cf. Espinal v. Vargas, 101 A.D.3d 1072, 956 N.Y.S.2d 504 ; Wilson v. City of New York, 65 A.D.3d 906, 910–911, 885 N.Y.S.2d 279 ; Ramos v. Shah, 293 A.D.2d 459, 460, 740 N.Y.S.2d 376 ; Ogunti v. Hellman, 281 A.D.2d 404, 405, 721 N.Y.S.2d 549 ; Rivera v. City of New York, 253 A.D.2d 597, 600, 677 N.Y.S.2d 537 ; Kogan v. Dreifuss, 174 A.D.2d 607, 610, 571 N.Y.S.2d 314 ).