Rafaniello v Gronowitz

[*1] Rafaniello v Gronowitz 2004 NY Slip Op 50700(U) Decided on June 30, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:ARONIN, J.P., GOLIA and RIOS, JJ.
NOS. 2003-1184 K C 2003-1286 K C

DONNA RAFANIELLO, Respondent, DR.

against

IRA GRONOWITZ and DR. TREVOR GOTTFRIED, Appellants. - DR. IRA GRONOWITZ, Third-Party Plaintiff, DR. JEFF CHUSTCKIE, Third-Party Defendant.

Appeals by defendants Dr. Ira Gronowitz and Dr. Trevor Gottfried from a judgment of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered July 12, 2002, in favor of plaintiff Donna Rafaniello in the principal sum of $450,000 ($300,000 representing damages for past pain and suffering, $48,000 representing damages for future pain and suffering, $55,000 representing damages for past dental expenses, and $47,000 representing damages for future dental expenses).

On the court's own motion, appeals consolidated for purposes of disposition.

Judgment unanimously modified without costs by deleting the provision thereof awarding plaintiff damages of $55,000 for past dental expenses, and substituting therefor a provision severing plaintiff's cause of action to recover damages for past dental expenses and granting a [*2]new trial with respect thereto; as so modified, judgment affirmed without costs, unless within 30 days after service upon plaintiff of a copy of the order hereon, with notice of entry, plaintiff shall serve and file in the office of the Clerk of the Civil Court, Kings County, a written stipulation signed by her consenting to reduce the verdict as to damages for past dental expenses from $55,000 to $28,950, and to the entry of a judgment amended accordingly; in the event that plaintiff so stipulates, then the judgment in her favor, as so reduced and amended, is affirmed without costs.

In this dental malpractice action, a jury found that defendants' dental and orthodontic treatment of plaintiff, which, inter alia, entailed unnecessary extraction of several teeth, deviated from good and accepted practice and required plaintiff to undergo periodontal, restorative and further orthodontic treatment. The jury awarded plaintiff $450,000 and found Dr. Ira Gronowitz to be 40% at fault, Dr. Trevor Gottfried to be 45% at fault, and Dr. Jeff Chustckie to be 15% at fault.

Contrary to the contention of defendants, the verdict on the issue of liability was not against the weight of the evidence. A jury verdict should not be set aside as against the weight of the evidence "unless 'the jury could not have reached the verdict on any fair interpretation of the evidence'" (Nicastro v Park, 113 AD2d 129, 134 [1985]). In reviewing the record to ascertain whether the verdict was based upon a fair interpretation of the evidence, great deference must be given to the finder of fact, as it was in the foremost position to assess witness credibility (see Schray v Amerada Hess Corp., 297 AD2d 339 [2002]) and to resolve issues of conflicting expert testimony (see Bobek v Crystal, 291 AD2d 521 [2002]). In the instant case, the jury could have concluded, based upon a fair interpretation of the evidence, that defendants were negligent and deviated from good and accepted dental and orthodontic practice, and that their negligence and said deviations were a substantial factor in bringing about plaintiff's injuries. Similarly, as is the case with questions of negligence, questions of apportionment of fault are matters for the finder of fact. Thus, the jury's apportionment of fault among the parties will not be disturbed, since it is likewise based upon a fair interpretation of the evidence (see Seaman v Town of Babylon, 231 AD2d 704 [1996]).

Moreover, considering the nature and extent of plaintiff's injuries, we find that the award of damages to plaintiff for past pain and suffering and for future dental expenses did not deviate materially from what would be reasonable compensation (see CPLR 5501 [c]). However, the award of damages for past dental expenses was not supported by the evidence, as plaintiff only established $28,950 in dental expenses incurred (see Toppin v Capan Contracting Corp., 251 AD2d 493 [1998]).

With respect to defendant Gottfried's contention that the testimony of plaintiff's expert, Dr. Herbert Rubin, should have been disallowed as he was not an expert in temporomandibular joint dysfunction, it is noted that a witness need not be a specialist in the field about which he or she is testifying to be qualified as having the requisite expertise to express an opinion. A dentist or physician's alleged lack of knowledge in a particular area in his or her field does not bar that person's testimony, but is simply a factor to be evaluated by the jury that goes to the weight to be accorded to the testimony and not its admissibility (see Gordon v Tishman Constr. Corp., 264 [*3]AD2d 499 [1999]). The defendant's remaining contentions are without merit.
Decision Date: June 30, 2004