McCluskey v. Shapiro

273 A.D.2d 284, 709 N.Y.S.2d 854, 2000 N.Y. App. Div. LEXIS 6487

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J.), entered February 24, 1999, which, upon a jury verdict, is in favor of the defendant and against him, dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff alleged that he was in excellent dental health when he consulted the defendant, and that the defendant, without obtaining his informed consent, began an extensive and unnecessary course of treatment which rendered him a “dental cripple.” After trial, the jury found in the defendant’s favor.

On appeal, the plaintiff contends that the court’s erroneous evidentiary rulings require that he be granted a new trial. We disagree. The court properly refused to take judicial notice of, or charge the jury as to certain regulations of the Commissioner of Education regarding the taking of dental impressions. The plaintiff failed to establish the relevance or applicability of those regulations. The trial court also providently exercised its discretion in refusing to submit to the jury the plaintiff’s claim that he needed root canals due to the defendant’s faulty treatment, since the testimony of his dental expert in that connection was too speculative.

The court also properly refused to preclude the defendant’s expert’s testimony despite the late service of notice pursuant to CPLR 3101, since the belated disclosure was neither willful nor intentional, and the plaintiff was not prejudiced thereby (see, Cutsogeorge v Hertz Corp., 264 AD2d 752; Aversa v Taubes, 194 AD2d 580).

The plaintiff’s remaining contentions are without merit. O’Brien, J. P., Joy, Luciano and Schmidt, JJ., concur.