| Steginsky v Gross |
| 2007 NY Slip Op 09766 [46 AD3d 671] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Eileen Steginsky, Appellant, v Arnold Gross et al.,Respondents, et al., Defendant. |
—[*1] Stewart H. Friedman, Lake Success, N.Y. (David A. Harrison of counsel), for respondentArnold Gross. Churbuck, Calabria, Jones & Materazo, P.C., Hicksville, N.Y. (George Jones of counsel), forrespondent Melvin Ganz. Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), forrespondent Gerald Grossman.
In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals, aslimited by her brief, from so much of a judgment of the Supreme Court, Queens County (Kelly,J.), entered December 6, 2005, as, upon a jury verdict, is in favor of the defendants Arnold Gross,Melvin Ganz, and Ganz & Grossman, D.D.S., P.C., and against her dismissing the complaintinsofar as asserted against those defendants.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of costspayable to the respondents appearing separately and filing separate briefs.
In a dental malpractice case, the plaintiff has the burden of establishing a departure fromaccepted dental practice, and that such departure was a proximate cause of the plaintiff's injuries(see Clarke v Limone, 40 AD3d571 [2007], lv denied 9 NY3d 809 [2007]; Falotico v Frankel, 232 AD2d607 [1996]). Where conflicting expert testimony is presented, the jury is entitled to accept oneexpert's [*2]opinion and to reject that of the other (see Clarke v Limone, 40 AD3d571 [2007]; Vona v Wank, 302 AD2d 516, 517 [2003]). The verdict should not beset aside as against the weight of the evidence unless the jury could not have reached the verdicton any fair interpretation of the evidence (see Clarke v Limone, 40 AD3d 571 [2007]; Nicastro vPark, 113 AD2d 129, 134 [1985]).
In the instant case, a fair interpretation of the evidence supports the jury's determination thatthe defendants' departure from the standard of care was not a substantial factor in causing theplaintiff's injuries. With respect to the defendant Dr. Arnold Gross, the jury was entitled to rejectthe opinion of the plaintiff's expert witness on the issue of causation and to accept the opinion ofthat defendant's expert witness, which had ample support in the record (see Clarke v Limone, 40 AD3d571 [2007]; Vona v Wank, 302 AD2d 516, 517 [2003]). With respect to thedefendants Dr. Melvin Ganz and Ganz & Grossman, D.D.S., P.C., the testimony of the plaintiff'sexpert witness did not establish a sufficient causal link between the alleged departures from thestandard of care and the specific injuries suffered by the plaintiff (see Pellew v Goldstein,279 AD2d 512 [2001]; Falotico v Frankel, 232 AD2d 607 [1996]). Accordingly, theverdict was not against the weight of the evidence.
The plaintiff's contention that the jury verdict was inconsistent is not preserved for appellatereview, since she did not raise that issue before the jury was discharged (see Barry vManglass, 55 NY2d 803, 806 [1981]; Delacruz v Galaxy Elecs., 300 AD2d 278[2002]). In any event, the issues are not so inextricably interwoven as to make it logicallyimpossible to find negligence without also finding proximate cause (see Parris v Perry, 38 AD3d 738,739 [2007]).
The plaintiff's remaining contentions are without merit. Schmidt, J.P., Santucci, Florio andDillon, JJ., concur.