defendant), convicting them of possession of
an ammunition-feeding device in violation of
the Administrative Code of the City of New
York Sec. 10-306(b), upon their pleas of guilty,
and imposing sentences.  The appeals bring
up for review the denial, after a hearing, of
that branch of the defendants' omnibus motion
 which was to suppress physical evidence.
   ORDERED that the judgments are re-
versed, on the law, that branch of the defen-
dants' omnibus motion which was to suppress
physical evidence is granted and the indict-
ment is dismissed insofar as asserted against
the appellants.

  On the evening of November 10, 1996, the
Kings County Society for the Prevention of
Cruelty to Children (hereinafter SPCC) re-
ceived an anonymous complaint that there
were two children screaming in apartment 2
at 1107 Carroll Street in Brooklyn. The next 
evening, several SPCC agents went to the
building, knocked on the door of apartment
2A, which was the first door on the second
floor, and asked if they could check on the 
welfare of the children. The woman who
opened the door denying that there were any
children present and, protesting that "this
was not Nazi Germany", refused to let the
SPCC agents enter the apartment. After
they interviewed some neighbors, who said
they had seen two children enter the apart- 
ment on prior occasions, the SPCC agents
summoned the police.

  When the woman refused to let the police 
enter the apartment without a warrant, they
called the Emergency Services Unit (herein-
after ESU), who threatened to use force if 
she did not open the door. During the ensu-
ing search, an ESU officer discovered 12
handguns, 23 rifles, and various forms of
ammunition hidden behind a false wall in a 
coat closet. The defendant's who were ar-
rested and charged with 38 counts of weap
ons possession, moved to suppress the physi-
cal evidence. At the suppression hearing, 
none of the SPCC agents or police officers
testifies that they, or any of the neighbors
they interviewed, heard any children scream-
ing on the night in question.

  Contrary to the conclusion reached by the 
hearing court, we find that the warrantless
search of the defendant's apartment was not
justified by the emergency exception to the 
warrant requirement. In People v. Mitchell,
39 N.Y.2d 173, 177-178, 383 N.Y.S.2d 246,
347 N.E.2d 607, cert. denied 426 U.S.953, 96
S.Ct. 3178, 49 L.Ed.2d 1191, the Court of 
Appeals set forth the following three-prong
test for the application of the emergency
doctrine:
   "(1) The police must have reasonable
     grounds to believe that there is an emer-
gency at hand and an immediate need for
their assistance for the protection of life or
property.
  "(2) The search must not be primarily mo-
tivated by intent to arrest and seize evi-
dence.
  "(3) There must be some reasonable basis,
approximating probable cause, to associate
the emergency with the area or place to be
searched."

  In the present case, the prosecution failed
to satisfy the first prong of the Mitchell text.
The record reveals that the police entry and
ensuing search were triggered by ambiguous
and uncorroborated information relayed by
the members of a volunteer organization,
who were responding to a day-old anonymous
complaint. Moreover, the warrantless night-
time search of the defendants' apartment was
conducted after a minimal police investiga-
tion which failed to establish that any chil-
dren were in imminent danger. In the ab-
sence of an emergency situation justifying
the search, the motion to suppress the weap-
ons and ammunition should have been grant-
ed.

West Key Number System

   25b A.D.2d 559
Kevin PACCIONE, etc., et al.,
respondents-appellants
                    v.
A. Saul GREENBERG, etc.,
appellant-respondent.

Supreme Court, Appellate Division,
    Second Department.
  Dec. 28, 1998.

  Husband whose wife had died during
surgery brought wrongful death action based

PACCIONE v. GREENBERG
Cite as 682 N.Y.S.2d 442 (A.D.2 Dept. 1998)

on medical malpractice against physician who
had cleared wife for surgery. The Supreme 
Court, Kings County, Garry J., entered
judgment on jury finding physician 24% at
fault, and awarding damages of $6,020,000.
Appeals were taken, and the Supreme Court,
Appellate Division, held that: (1) evidence
supported jury finding that physician's fail-
ure to read patient's hospital chart, and note
patient's liver problems, before clearing her 
for gall bladder surgery was a substantial
factor in causing patient's death; (2) awards
of $2.5 million each for loss of parental guid-
ance to both of wife's children were exces-
sive, and would be reduced to $1.5 million;
but (3) award to husband for loss of consor-
tium was not excessive.

   Affirmed as modified.

1. Physicians and Surgeons 15(12)

  Evidence supported jury finding that
physician's failure to read patient's hospital
chart, and note patient's liver problems, be-
fore clearing her for gall bladder surgery
was a substantial factor in causing patient's
death

2. Physicians and Surgeons 18.120

  Jury findings that physician's action in
giving cardiology clearance for patient to un-
dergo gall bladder surgery was not substan-
tial factor in causing patient's death, but that
failure to read her chart and note existence
of liver problems was such a substantial fac-
tor, were not irreconcilably inconsistent.

3. Physicians and Surgeons 18.110

  Awards of $2.5 million for loss of paren-
tal guidance to both of decedent's two minor
children were excessive in wrongful death
action based on medical malpractice, and 
would be reduced to $1.5 million each.

4. Death 103(4)

  Jury in wrongful death action could con-
sider issue of surviving husband's damages
for loss of wife's services, even through court
did not admit expert economist testimony as
to value of such services. McKinney's EPTL
5-4.3(a)

  Martin Clearwater & Bell (Mauro &
Goldberg, Great Neck, N.Y. [Barbara D.
Goldberg, Kenneth Mauro, and John L.A
Lyddane] of counsel). for appellant-respon-
dent.

  Coiro, Wardi, Chinitz & Silverstein, New
York, N.Y. (Sylvester J. Garamella and Rob-
ert M. Silverstein of counsel), for respon-
dents-appellants.

O'BRIEN, J.P., PIZZUTO, JOY and
GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

  In an action to recover damages for medi-
cal malpractice and wrongful death, etc., the
defendant appeals, as limited by his brief,
from so much of a judgment of the Supreme
Court, Kings County (Garry, J.), entered Oc-
tober 10, 1997, as, upon a jury verdict finding 
him 24% at fault, and finding that the plain-
tiffs suffered damages in the total sum of
$6,020,000, is in favor of the plaintiffs and
against him in the principal sum of $1,477,-
513.41 and the plaintiffs cross-appeal, as lim-
ited by their brief, from so much of the 
judgment as apportioned liability to other
defendants who had settled with the plain-
tiffs prior to trial, and failed to submit the
issue of the plaintiff's damages for loss of the 
decedent's services to the jury.

  ORDERED that the judgment is modified,
on the facts and as a matter of discretion, by
(1) deleting the provision thereof which
awarded damages for loss of parental guid-
ance and substituting therefor a provision
severing the cause of action to recover those
damages and granting a new trial with re-
spect thereto, unless within thirty days after
service upon him of a copy of his decision
and order will notice of entry, the plaintiff
shall serve and file in the office of the Clerk
of the Supreme Court, Kings County, a writ-
ten stipulation consenting to reduce the ver-
dict for loss of parental guidance from the 
principal sum of $5,000,000 to the principal