

Reid v Rubinstein (2017 NY Slip Op 07941)





Reid v Rubinstein


2017 NY Slip Op 07941


Decided on November 14, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 14, 2017

Friedman, J.P., Kapnick, Webber, Gesmer, Oing, JJ.


305441/10  4919B 4919A 4919 4919C

[*1] Donald Reid, Plaintiff-Appellant,
vDr. 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.

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 NY2d 553, 556 [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 AD3d 335 [1st Dept 2007], lv denied 9 NY3d 813 [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 NY3d 907 [2010]).
Nothing in the trial record shows judicial bias warranting a mistrial (see Noboa-Jaquez v Town Sports Intl., LLC, 138 AD3d 493 [1st Dept 2016]).
The court properly precluded plaintiff's expert from testifying as to bone grafting since no [*2]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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 14, 2017
CLERK


