Opinion
305441/10, 4919B, 4919A, 4919, 4919C.
11-14-2017
Donald REID, Plaintiff–Appellant, v. Dr. RUBINSTEIN, et al., Defendants–Respondents, Jose, Dr. Jerry Lynn, D.D.S., et al., Defendants.
Joel M. Kotick, New York, for appellant. Mauro Lilling Naparty, Woodbury (Gregory A. Cascino of Counsel), for Dr. Rubinstein, respondent. Marulli, Lindenbaum & Tomaszewski, LLP, New York (Aleksandr Gelerman of Counsel), for Dr. Robert Winegarten, respondent. Gordon & Silber, P.C., New York (Michael A. Bayron of Counsel), for Sol Stolzenberg, respondent.
Joel M. Kotick, New York, for appellant.
Mauro Lilling Naparty, Woodbury (Gregory A. Cascino of Counsel), for Dr. Rubinstein, respondent.
Marulli, Lindenbaum & Tomaszewski, LLP, New York (Aleksandr Gelerman of Counsel), for Dr. Robert Winegarten, respondent.
Gordon & Silber, P.C., New York (Michael A. Bayron of Counsel), for Sol Stolzenberg, respondent.
Appeal from order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered November 30, 2016, deemed appeal from judgments, same court and Justice, entered February 15, 2017, February 27, 2017, and May 26, 2017, dismissing the complaint as against defendants Sol Stolzenberg, D.M.D., d/b/a Toothsavers, Harrison Rubinstein, D.D.S., s/h/a Dr. Rubinstein, and Robert Winegarden, D.M.D, s/h/a Dr. Robert Winegarten, respectively, and, so considered, said judgments unanimously affirmed, without costs.
The trial court correctly granted defendants' motion for judgment as a matter of law at the close of plaintiff's dental malpractice case (see CPLR 4401 ; Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346 [1997] ). Plaintiff claims that defendants should have treated him with implants, rather than a bridge. However, his expert testified that, although he favored implants, both implants and a bridge were appropriate treatment options (see Durney v. Terk, 42 A.D.3d 335, 840 N.Y.S.2d 30 [1st Dept.2007], lv. denied 9 N.Y.3d 813, 848 N.Y.S.2d 24, 878 N.E.2d 608 [2007] ).
The trial evidence demonstrates that, contrary to his contention, plaintiff's consent to the insertion of a bridge was informed (see Orphan v. Pilnik, 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010] ).
Nothing in the trial record shows judicial bias warranting a mistrial (see Noboa–Jaquez v. Town Sports Intl., LLC, 138 A.D.3d 493, 28 N.Y.S.3d 306 [1st Dept.2016] ).
The court properly precluded plaintiff's expert from testifying as to bone grafting since no theory of liability involving bone grafting was included in plaintiff's expert disclosure (see CPLR 3101[d] ), or his bill of particulars.
We have considered plaintiff's remaining contentions and find them unavailing.
FRIEDMAN, J.P., KAPNICK, WEBBER, GESMER, OING, JJ., concur.