Hylick v. Halweil

• Decision Date: 29 July 1985
• Citation: 492 N.Y.S.2d 57,112 A.D.2d 400
• Parties: Catherine HYLICK, Appellant, v. Ronald HALWEIL, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 57

492 N.Y.S.2d 57

112 A.D.2d 400

Catherine HYLICK, Appellant, v. Ronald HALWEIL, Respondent.

Supreme Court, Appellate Division Second Department.

July 29, 1985.

Shapiro, Meyer, Feinson, Diesenhouse & Bloom, Middletown (Sheldon Diesenhouse, Middletown, of counsel), for appellant.

Rende, Ryan & Downes, White Plains (Wayne M. Rubin and Robert D. Ryan, White Plains, of counsel), for respondent.

Before MANGANO, J.P., and THOMPSON, O'CONNOR and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages allegedly resulting from medical malpractice and lack of informed consent, plaintiff appeals from a judgment of the Supreme Court, Orange County, entered December 9, 1983, which dismissed the complaint at the close of her case, on the ground of failure to present a prima facie case.

Judgment affirmed, with costs.

To be entitled to judgment as a matter of law, the defendant movant has the burden of showing that plaintiff failed to make out a prima facie case; the plaintiff's evidence must be accepted as true, and plaintiff must be given the benefit of every favorable inference which can reasonably be drawn from that evidence (Nicholas v. Reason, 84 A.D.2d 915, 447 N.Y.S.2d 55). The motion should be granted only if there is no rational process by which the jury could find for the plaintiff as against the moving defendant (Siegel, New York Practice, § 402; 4 Weinstein-Korn-Miller, NY Civ Prac, par 4401.05).

In order to survive a trial motion to dismiss at the end of her case, plaintiff was required to make a prima facie showing that the defendant failed to exercise such reasonable care and diligence in his treatment of her as would be expected of the average member of his profession in the locality at the time of treatment (Pike v. Honsinger, 155 N.Y. 201, 209-10, 49 N.E. 760; Nicholas v. Reason, supra ), and that plaintiff's injury proximately resulted from defendant's departure from the required standard of performance (Nicholas v. Reason, supra ). The record at bar does not contain any evidence that this defendant's actions fell below the standard of performance of the average member of his profession in the locality at the time of treatment.

Plaintiff's reliance on Lipsius v. White (91 A.D.2d 271, 458 N.Y.S.2d 928), is misplaced. In Lipsius, unnecessary surgery was the injury proximately resulting from defendant's failure to perform diagnostic tests; evidence was presented that the failure to perform those tests was itself a departure from accepted medical practice. Although plaintiff at bar adduced testimony that defendant failed to perform certain diagnostic tests which might have obviated the need for a surgical intervention, there was no evidence that his failure to perform those tests, nor that performance of the operations itself,...