Mayblum v. Schwarzbaum

Appellate Division of the Supreme Court of New York

Mayblum v. Schwarzbaum

253 A.D.2d 380, 675 N.Y.S.2d 868, 1998 N.Y. App. Div. LEXIS 8945

Appellate Division of the Supreme Court of the State of New York·Decided August 20, 1998·Published·Cited by 5 cases

Opinion

Appeal from order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about February 21, 1997, granting defendant’s [381] motion for summary judgment, deemed an appeal from the ensuing judgment of the same court and Justice, entered April 16, 1997, dismissing the complaint, and, so considered, the judgment is unanimously affirmed, without costs.

Plaintiff husband in this dental malpractice action alleges that defendant negligently failed to administer prophylactic antibiotics to him prior to periodontal treatment and that this failure caused him to suffer subsequent cardiac complications. It is undisputed, however, that unless plaintiff had had a heart murmur, prophylactic antibiotic treatment would not have been indicated and plaintiff’s medical records demonstrate conclusively that at the time of plaintiff’s periodontal treatment he had not been diagnosed as suffering from a heart murmur. Plaintiff’s argument that the dispositive medical records, obtained from his treating internist of the previous 20 years, did not constitute evidentiary proof in admissible form has been waived since it was not advanced in the motion court (see, Celentano v St. Luke’s Roosevelt Hosp. Med. Ctr., 170 AD2d 198, 199), and, in any event, the subject medical records do qualify as business records (see, 8 NYCRR 29.2 [a] [3]), and, as such, are admissible pursuant to CPLR 4518 (a).

We have considered plaintiff’s remaining argument and find it to be without merit. Concur — Lerner, P. J., Sullivan, Nardelli, Rubin and Saxe, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about February 21, 1997, granting defendant’s [381] motion for summary judgment, deemed an appeal from the ensuing judgment of the same court and Justice, entered April 16, 1997, dismissing the complaint, and, so considered, the judgment is unanimously affirmed, without costs.

Plaintiff husband in this dental malpractice action alleges that defendant negligently failed to administer prophylactic antibiotics to him prior to periodontal treatment and that this failure caused him to suffer subsequent cardiac complications. It is undisputed, however, that unless plaintiff had had a heart murmur, prophylactic antibiotic treatment would not have been indicated and plaintiff’s medical records demonstrate conclusively that at the time of plaintiff’s periodontal treatment he had not been diagnosed as suffering from a heart murmur. Plaintiff’s argument that the dispositive medical records, obtained from his treating internist of the previous 20 years, did not constitute evidentiary proof in admissible form has been waived since it was not advanced in the motion court (see, Celentano v St. Luke’s Roosevelt Hosp. Med. Ctr., 170 AD2d 198, 199), and, in any event, the subject medical records do qualify as business records (see, 8 NYCRR 29.2 [a] [3]), and, as such, are admissible pursuant to CPLR 4518 (a).

We have considered plaintiff’s remaining argument and find it to be without merit. Concur — Lerner, P. J., Sullivan, Nardelli, Rubin and Saxe, JJ.

Mayblum v. Schwarzbaum, 253 A.D.2d 380, 675 N.Y.S.2d 868, 1998 N.Y. App. Div. LEXIS 8945 (N.Y. Ct. App. 1998).

Pincite

253 A.D.2d 380 (Mayblum v. Schwarzbaum) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related