Earl v. Goldstein , 727 N.Y.S.2d 344 ( 2001 )

—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.