Inasmuch as claimant has failed to sustain the burden of proof on his cause of action I dissent and vote to affirm its dismissal.
The majority correctly points out that “insofar as the State, through its agents, exercised accepted administrative and professional judgment, it may not be held responsible to claimant in negligence or for illegal detention.” Thus the State becomes liable for its actions only when it is established that through negligent inattention to duty the State’s agents have caused harm to a person under the State’s control. In my opinion, the evidence presented here does not meet this burden of establishing such "negligent inattention to duty.”
In support of his cause of action, claimant offered the testimony of two psychiatrists, neither of whom had examined or interviewed claimant prior to trial. Their testimony, therefore, was based solely upon general medical knowledge and a review of claimant’s medical records. The first witness was a staff psychiatrist at Willard State Hospital. He admitted that at the time of claimant’s original voluntary admission in 1932 the only available and recognized treatment for dementia praecox simple was conversations with a psychiatrist but that such conversations, while in effect a form of therapy, need not be noted in the patient’s medical records. He also adnlitted that claimant’s mere presence within the milieu of a hospital would contribute toward the treatment of his illness.
According to this witness, while more conventional therapies were developed in the 1930’s, these treatments, consisting of electro-convulsive shock, insulin and carbon dioxide narcosis, were reserved for only the seriously disturbed patients due to the inherent dangers involved in their administration. It was not until 1955 that the first benign chemical treatments such as tranquilizers were developed.
Claimant’s second medical expert was an assistant professor of psychiatry at the Upstate Medical Center. Based upon his review of the medical records, he opined that aside from claimant’s first examination upon admission, there was a marked absence of adequate mental and physical examinations as well as ongoing medical treatment until 1968-69 when claimant was given tranquilizers. Although he admitted that the mere absence of notations in the medical records did not *327necessarily mean that claimant did not receive treatment, this absence when coupled with the lack of continuing medication was significant. He admitted, however, that he could not state when either the diagnosis of claimant’s illness or his confinement in the hospital became improper.
In analyzing the sufficiency of this proof, it is important to note that due to the doctrine of governmental immunity negligent professional judgments by the State are not actionable (see Bellows v State of New York, 37 AD2d 342; Zophy v State of New York, 27 AD2d 414; Rosario v State of New York, 33 AD2d 122, affd 36 NY2d 901). Thus, as long as the State provides the patient with ongoing medical treatment, its decision to employ one type of accepted therapy as opposed to another will not give rise to a cause of action. In light of this, claimant was required to establish that the State, either in fact or in effect, negligently failed to provide him with any adequate medical treatment.
Turning then to the allegations of negligence raised here, claimant’s experts take issue with five basic aspects of the State’s treatment. These are the lack of prescribed medication, the absence of an ongoing treatment plan, the sparsity of adequte entries in the medical records, the failure to allow claimant out on weekends, and the failure to investigate adequately claimant’s family relationship.
With respect to the argument that the State failed to prescribe proper medication, it is undisputed in the record that, although claimant received phenobarbital in 1959, he was not given a major tranquilizer until 1968. However, the use of such drugs in cases like this was not, according to claimant’s own experts, recognized until 1955. With respect to the period between 1955 and 1968 claimant has failed to present any evidence to establish that he was amenable to this type of treatment. In fact, the uncontradicted testimony of the director of the State Hospital pointed out that during this period the use of tranquilizers was "not indicated” in claimant’s case. The mere existence of a certain type of treatment or therapy does not necessarily mean that it should be indiscriminately prescribed in every case and, in light of the State’s evidence on this point, it was incumbent upon claimant to establish that his condition warranted the use of such tranquilizers.
Nor is there any indication that claimant was not afforded an ongoing treatment plan. While it is true that the medical *328records do not establish that claimant received complete mental and physical examinations on a yearly basis, there are numerous psychiatric evaluations entered by doctors with whom claimant conversed. Inasmuch as such conversations are admittedly a form of therapy in a case such as this, it cannot be said that on the record before this court claimant has established the lack of an effective treatment plan. Furthermore, the hospital made available group occupational therapy programs. However, except for limited instances, claimant refused to participate in these programs and, in fact, exhibited a hostile attitude toward them.
Claimant also takes issue with the sparsity of the entries in the medical reports. However, as his own experts admitted, that fact alone does not establish that the State failed to provide the proper treatment in this case. While it may be taken as evidence of such failure, it cannot be said to establish such fact, as against the other evidence in the case, by a preponderance of proof. Furthermore, there was no evidence that claimant required more extensive or more frequent examinations than those given.
Claimant’s fourth contention, that he should have been permitted out on weekends, is readily disposed of by reference to the fact that one of the symptoms mentioned in claimant’s original diagnosis was "aimless wandering” and that, according to the medical reports, claimant consistently exhibited a hostile and non-co-operative attitude. Thus there was a basis for refusing to permit him to go out on weekends. The propriety of this judgment cannot be viewed in retrospect but must be evaluated in light of the patient’s attitude and condition at the time. Thus while such weekend releases may be considered an accepted form of treatment, there is no indication that claimant was amenable to this therapy and, in any event, it was a matter of professional judgment for which the State cannot be held liable.
Finally, it is argued that the hospital negligently failed to investigate claimant’s family relationship. It is important to note, however, that claimant’s mother and sister were responsible for his subsequent involuntary commitment and that, as the majority points out, they were apparently happy to have him retained at the hospital. Furthermore, in 1962 when the hospital did contact claimant’s sister with the hope that he could be released for home visits, this suggestion was rejected *329by his brother-in-law on the ground that it would not be safe for him to reside in a private home.
Inasmuch as the Court of Claims found in favor of the State, on this appeal we must view the facts in the light most favorable to the State and give it the benefit of every reasonable inference which can fairly be drawn from the evidence (Owen v Rochester-Penfield Bus Co., 304 NY 457; Lee v Lesniak, 40 AD2d 756; Kasper v Metropolitan Life Ins. Co., 244 App Div 508). Although this case was tried without a jury the findings of the court are still to be afforded the same effect as a jury verdict (Matter of City of New York [Ginsberg], 36 AD2d 156, 159). Thus where the resolution of an issue hinges upon the credibility of a witness or an inference drawn from conflicting testimony, the decision of the trier of fact should be given the greatest deference (Amend v Hurley, 293 NY 587, 594). In short, we may disturb the court’s finding only when the preponderance of the evidence is so great that the court could not have reached the verdict it did on any fair interpretation of that evidence (Lee v Lesniak, supra; Marton v McCasland, 16 AD2d 781; Rapant v Ogsbury, 279 App Div 298).
In the instant case there was, in my opinion, more than sufficient proof for the court to draw the inference that the treatment provided by the Staté was neither substandard nor inadequate. Consequently, while sympathizing with the claimant’s dissatisfaction with having been confined in a mental hospital for so long a period, I do not believe that he has established that this confinement was unjustified or that he was not provided adequate treatment. I would affirm the judgment.
Mahoney, Dillon and Goldman, JJ., concur with Wither, J.; Moule, J. P., dissents and votes to affirm the judgment in an opinion.
Judgment reversed on the law and facts with costs to claimant, claim reinstated and case remitted to Court of Claims for assessment of damages in accordance with opinion by Wither, J.