Opinion
December 22, 1995
Appeal from the Supreme Court, Erie County, Notaro, J.
Present — Pine, J.P., Fallon, Wesley, Balio and Boehm, JJ.
Judgment unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant's motion to dismiss at the close of proof. Contrary to defendant's contention, expert testimony was not required to establish a prima facie case because this case involves ordinary negligence, not medical malpractice (see, Kerker v Hurwitz, 163 A.D.2d 859, remittitur amended 166 A.D.2d 931; see generally, White v Sheehan Mem. Hosp., 119 A.D.2d 989). The court also properly refused to charge the affirmative defense of culpable conduct; there was no evidence that plaintiff's decedent was negligent (see, Willis v Young Men's Christian Assn., 28 N.Y.2d 375, 377-378).