Esbin v. Ausubel , 331 N.Y.S.2d 734 ( 1972 )

In this medical malpractice action, defendants appeal from a judgment of the Supreme Court, Nassau County, entered January 6, 1971, against them and in favor of plaintiff upon a jury verdict of $175,000 for wrongful death of plaintiff’s intestate and $2,500 for his conscious pain and suffering. Judgment reversed, on the law, and new trial granted on the issue of damages only with costs to abide the event, unless, within 30 days after the entry of the order hereon, plaintiff shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict for wrongful death to $100,000 and to the entry of an amended judgment in accordance therewith, in which event the judgment, as so reduced and amended, is affirmed, without costs. We have considered the questions of fact and have determined that we would not grant a new trial upon those questions. In our opinion the verdict for wrongful death was excessive to the extent indicated herein (cf. Zaninovich v. American Airlines, 26 A D 2d 155, 159). Munder, Acting P. J., Martuscello, Shapiro and Brennan, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and dismiss the complaint, with the following memorandum: In this record I see nothing more than an unfortunate result in a desperate case. At the very worst, defendants may have been guilty of an error of judgment; and that is not enough to support a malpractice action against them (Pike v. Honsinger, 155 N. Y. 201, 210; Cunningham v. State of New York, 10 A D 2d 751, affd. 11 N Y 2d 808).