
    Victor Simon, as Executor of Selma Losow and Another, Deceased, Respondent, v. Long Island Jewish Hospital et al., Defendants, and Leonard Burson, Appellant.
   In a medical malpractice action to recover damages for personal injuries, etc., defendant Burson appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County, entered June 23, 1972, as is against him, upon a jury verdict. Judgment reversed insofar as appealed from, on the law, without costs, and complaint as against defendant Burson dismissed, without costs. The findings of fact below are not affirmed. In our opinion, there was no credible proof to support plaintiffs’ theory that appellant failed to identify the right recurrent laryngeal nerve during the course of the thyroidectomy. If we were not reversing and dismissing the complaint, we would reverse the judgment insofar as it is against appellant and grant a new trial as to him, on the ground that the verdict against him was against the weight of the evidence. Shapiro, Acting P. J., Gulotta, Christ and Brennan, JJ., concur; Benjamin, J., dissents and votes to modify the judgment by reducing the verdict for the now-deceased plaintiff Selma Losow to $40,000 and to affirm the judgment insofar as appealed from and as so modified, with the following memorandum: “ I believe that on this record there was sufficient evidence to support a finding by the jury of appellant’s negligence. However, in my opinion, the verdict for Selma Losow was excessive and should be reduced to $40,000. In all other respects, the judgment should be affirmed insofar as appealed from.”  