| Diel v Bryan |
| 2008 NY Slip Op 10395 [57 AD3d 1493] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Julie Diel, Individually and as Mother and Natural Guardian of BrandonDiel, an Infant, and as Administratrix of the Estate of Brandon Diel, Deceased, Respondent, v AmyBryan, D.D.S., et al., Appellants, et al., Defendant. |
—[*1] Gibson, McAskill & Crosby, LLP, Buffalo (Sally J. Broad of counsel), for defendant-appellantGilbert Schulenberg, D.D.S., Doing Business as Buffalo Oral Surgery Associates. Michael B. Jones, Buffalo, for plaintiff-respondent.
Appeals from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered February28, 2008. The order, insofar as appealed from, denied the motion of defendant Amy Bryan, D.D.S. forsummary judgment and denied in part the motion of defendant Gilbert Schulenberg, D.D.S., doingbusiness as Buffalo Oral Surgery Associates, for summary judgment.
Now, upon the stipulation discontinuing action signed by the attorneys for defendants-appellantsand plaintiff-respondent on September 12, 2008 and filed in the Erie County Clerk's Office onSeptember 18, 2008,
It is hereby ordered that said appeal taken by defendant Gilbert Schulenberg, D.D.S., doingbusiness as Buffalo Oral Surgery Associates, is unanimously dismissed upon stipulation and the order isotherwise affirmed without costs.
Memorandum: Plaintiff commenced this action, individually and on behalf of the estate of her son(decedent), seeking damages for decedent's wrongful death that allegedly resulted from dentalmalpractice. Supreme Court properly denied the motion of Amy Bryan, D.D.S. (defendant) forsummary judgment dismissing the complaint against her. Although defendant met her initial burden,plaintiff raised a triable issue of fact by submitting the affirmation of an anesthesiologist stating that [*2]defendant deviated from the acceptable standards of care in heradministration of anesthesia to decedent (seeBell v Ellis Hosp., 50 AD3d 1240, 1242 [2008]; see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Contrary to defendant's contention, the anesthesiologistpossessed the requisite skill, training, knowledge and experience to render a reliable opinion withrespect to the standard of care applicable to the administration of the anesthesia (see Bickom v Bierwagen, 48 AD3d1247 [2008]; see generally Matott v Ward, 48 NY2d 455, 459 [1979]). Indeed,plaintiff's expert "was not required to have practiced the same specialty as defendant" (Robertson vGreenstein, 308 AD2d 381, 382 [2003], lv dismissed 2 NY3d 759 [2004]; seegenerally Fuller v Preis, 35 NY2d 425, 431 [1974]). The affirmation of the anesthesiologistsufficiently set forth defendant's alleged acts of negligence and the consequences thereof such that a trierof fact could conclude that defendant's alleged negligence was a proximate cause of decedent's death(see Roca v Perel, 51 AD3d 757,759 [2008]). Present—Scudder, P.J., Martoche, Smith, Green and Gorski, JJ.