Earl v. Goldstein

—In an action to recover damages for medical malpractice, the defendants appeal from a judgment of the Supreme Court, Nassau County (Lally, J.), dated April 10, 2000, which, upon a jury verdict, and upon the denial of their motion pursuant to CPLR 4404 for judgment in their favor as a matter of law, is in favor of the plaintiff Maureen Earl in the principal sum of $300,000 and in favor of the plaintiff Donald Earl in the principal sum of $100,000.

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The evidence at trial was insufficient, as a matter of law, to prove that the conduct of the defendant doctor, Jeffrey Gold-stein, unreasonably endangered the physical safety of the plaintiff Maureen Earl or caused her to fear for her safety (see, Cohen v Hallmark Cards, 45 NY2d 493 , 499; Creed v United Hosp., 190 AD2d 489 ; Lancellotti v Howard, 155 AD2d 588 ). As a result, the jury verdict in favor of Maureen Earl, and her husband on his derivative claim, should have been set aside and the complaint dismissed (see, CPLR 4404 [a]; Kakoullis v Harri H. Janssen M.D., P. C., 188 AD2d 769 , 770).

In light of this conclusion, we need not address the defendants’ remaining contentions. O’Brien, J. P., Altman, Luciano and Adams, JJ., concur.