| Rivera v New York Presbyt. Hosp. |
| 2012 NY Slip Op 03431 [95 AD3d 861] |
| May 1, 2012 |
| Appellate Division, Second Department |
| Lina Rivera, Appellant, v New York Presbyterian Hospitalet al., Defendants, and Andrew J. Szabo, Respondent. |
—[*1] Dwyer & Taglia, New York, N.Y. (Gary J. Dwyer of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, theplaintiff appeals from a judgment of the Supreme Court, Queens County (Hart, J.), enteredSeptember 3, 2010, which, upon the granting of the motion of the defendant Andrew J. Szabopursuant to CPLR 4401 for judgment as a matter of law, made at the close of the plaintiff's case,is in favor of that defendant and against her, dismissing the complaint insofar as asserted againsthim.
Ordered that the judgment is affirmed, with costs.
"A party's motion pursuant to CPLR 4401 for judgment as a matter of law should be grantedonly when, accepting the opposing party's evidence as true, and according that evidence thebenefit of every favorable inference that can reasonably be drawn therefrom, there is no rationalprocess by which the fact finder could base a finding in favor of the nonmoving party" (Germain v Irizarry, 82 AD3d 833,835 [2011]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Dockery v Sprecher, 68 AD3d1043, 1045 [2009]). "Although physicians owe a general duty of care to their patients, thatduty may be limited to those medical functions undertaken by the physician and relied on by thepatient" (Covert v Walker, 82 AD3d825, 826 [2011] [internal quotation marks omitted]; see Ellis v Eng, 70 AD3d 887, 892 [2010]; Dockery vSprecher, 68 AD3d at 1046).
Here, viewing the plaintiff's evidence in the light most favorable to the plaintiff, there was noevidence that the defendant Andrew J. Szabo, who was treating the decedent's thyroid cancer,undertook to diagnose or treat the decedent's liver disease, which he knew was being treated bythe decedent's gastroenterologist. Accordingly, the Supreme Court properly granted Szabo'smotion pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matterof law dismissing the complaint insofar as asserted against him (see Ellis v Eng, 70AD3d at 892; Dockery v Sprecher, 68 AD3d at 1045-1046; Wasserman v Staten Is. RadiologicalAssoc., 2 AD3d 713, 714 [2003]).
In light of our determination, we need not reach the plaintiff's remaining contentions.Angiolillo, J.P., Belen, Lott and Miller, JJ., concur.