Holton v. Sprain Brook Manor Nursing Home

• Decision Date: 28 September 1998
• Citation: 253 A.D.2d 852,678 N.Y.S.2d 503
• Parties: 1998 N.Y. Slip Op. 8413 James V. HOLTON, etc., Appellant, v. SPRAIN BROOK MANOR NURSING HOME, et al., Respondents. . Supreme Court of New York, Appellate Division, Second Department
• Court: New York Supreme Court — Appellate Division

Page 503

678 N.Y.S.2d 503

1998 N.Y. Slip Op. 8413

James V. HOLTON, etc., Appellant, v. SPRAIN BROOK MANOR NURSING HOME, et al., Respondents.

Supreme Court of New York, Appellate Division,

Second Department.

Supreme Court of New York, Appellate Division,

Second Department.

Sept. 28, 1998.

Mantell & Haskel, New York, N.Y. (Amy Christianson of counsel), for appellant.

Clark Gagliardi & Miller, P.C., White Plains, N.Y. (John S. Rand of counsel), for respondent Sprain Brook Manor Nursing Home.

DuBois, Billig, Loughlin, Conaty & Weisman, White Plains, N.Y. (Jacqueline Mandell of counsel), for respondent Brook Nevins.

Martin, Clearwater & Bell, New York, N.Y. (Patricia D. Alvia, Gregory J. Radomisli, and Anthony M. Sola of counsel), for respondent Henry J. Lefkowits.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 6, 1997, which denied his motion to reargue the motion of the defendants Sprain Brook Manor Nursing Home, Brook Nevins, and Henry J. Lefkowits, to dismiss the complaint for failure to make out a prima facie case, which motion was granted by the court at the close of the plaintiff's case, and (2) a judgment of the same court, entered October 8, 1997, which is in favor of the defendants and against him, dismissing the complaint.

ORDERED that the appeal from the order is dismissed as no appeal lies from an order denying reargument; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

"The requisite elements of proof in a medical malpractice [action] are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage" (Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y.S.2d 411; see, Bloom v. City of New York, 202 A.D.2d 465, 609 N.Y.S.2d 45). In a medical malpractice action, where causation is often a difficult issue, a plaintiff need do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant (see, Minelli v. Good Samaritan Hosp., 213 A.D.2d 705, 706, 624 N.Y.S.2d 452; Hughes v. New York Hosp.-Cornell Med. Ctr., 195 A.D.2d 442, 443, 600 N.Y.S.2d 145). Evidence of a difference of opinion among physicians does not provide an adequate basis for a prima facie...