Pieter v. Polin, 2014-11356, Index No. 5216/10.

• Decision Date: 29 March 2017
• Docket Number: 2014-11356, Index No. 5216/10.
• Citation: 50 N.Y.S.3d 509,148 A.D.3d 1193
• Parties: Angela PIETER, appellant, v. Nichole M. POLIN, et al., respondents.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1193
50 N.Y.S.3d 509

Angela PIETER, appellant,
v.
Nichole M. POLIN, et al., respondents.

2014-11356, Index No. 5216/10.

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2017.

50 N.Y.S.3d 510

Nathan L. Dembin & Associates, P.C., New York, N.Y. (Ellen S. Davis of counsel), for appellant.

Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Scott C. Watson and Jessica L. Darrow of counsel), for respondents.

MARK C. DILLON, J.P., SANDRA L. SGROI, SYLVIA O. HINDS–RADIX and JOSEPH J. MALTESE, JJ.

148 A.D.3d 1193

In an action to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Nahman, J.), entered September 19, 2014, which, upon the granting of the defendants' motion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the complaint insofar as asserted against the defendants Nicole M. Polin, Arash Salemi, and New York–Presbyterian/Weill Cornell Hospital, is in favor of those defendants and against her, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the judgment is affirmed, with costs.

On October 23, 2007, the plaintiff was admitted to the defendant New York–Presbyterian/Weill Cornell Hospital (hereinafter the hospital) and underwent two cardiac catheterization procedures performed by the defendant Nichole M. Polin. The next day, she underwent coronary artery bypass surgery performed by the defendant Arash Salemi. In March 2010, the plaintiff commenced this action against the defendants to recover damages for medical malpractice and lack of informed consent arising from the surgeries. At the ensuing jury trial, the defendants moved pursuant to CPLR 4401, at the close of the plaintiff's case, to dismiss the complaint insofar as asserted against Polin, Salemi, and the hospital. The Supreme Court granted the motion and dismissed the complaint.

"To be awarded judgment as a matter of law pursuant to CPLR 4401, a defendant must show that, upon viewing the evidence in the light most favorable to the plaintiff, there is no rational process by which the jury could find for the plaintiff against the moving defendant" (Pitt v. New York City Tr. Auth, 146 A.D.3d 826, 827, 44 N.Y.S.3d 525 [internal quotation marks omitted]; see Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 ; Santos v. Deanco Servs., Inc., 142 A.D.3d 137, 143–144, 35 N.Y.S.3d 686 ). "In considering such a motion, trial courts ‘must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the...