Cole v Johnson

Cole v Johnson 2011 NY Slip Op 08808 Decided on December 6, 2011 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 December 6, 2011
Mazzarelli, J.P., Friedman, Catterson, Renwick, DeGrasse, JJ.
6233 106530/05

[*1]Rosalind Cole, Plaintiff-Appellant,

v

Mark Johnson, D.D.S., Defendant-Respondent, Lenox Hill Hospital, et al., Defendant.




John V. Decolator, Garden City, for appellant.
Morris Duffy Alonso & Faley, New York (Iryna S. Krauchanka
and Kevin G. Faley of counsel), for respondent.

Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), entered February 8, 2010, to the extent appealed from as limited by the briefs, dismissing the complaint against defendant Mark Johnson, D.D.S., after jury trial, and bringing up for review an order, same court and Justice, entered on or about February 18, 2009, which denied plaintiff's motion to set aside the verdict, unanimously affirmed, without costs.

In this action for dental malpractice, plaintiff alleged that defendant Johnson deviated from good and accepted dental care by placing a putty-like substance known as cavit over her tooth until a scheduled root canal could be performed.

The jury's verdict was based upon a fair interpretation of the evidence (see McDermott v Coffee Beanery, Ltd., 9 AD3d 195, 206 [2004]). Defendant submitted evidence that he did not deviate from accepted dental practices in placing the cavit, since leaving the tooth open would result in collection of additional bacteria and debris. The expert witness for defendant Gray never testified that Johnson's treatment was contraindicated or a deviation from good and accepted dental care. "To the extent that plaintiff's evidence conflicted with defendant's proof on such issue, the jury's resolution of the disputed facts is entitled to deference" (Warren v New York Presbyterian Hosp., 88 AD3d 591 [2011]; see Bykowsky v Eskenazi, 72 AD3d 590 [2010], lv denied 16 NY3d 701 [2011]). Indeed, the failure to set aside the verdict and direct a new trial is an abuse of discretion only when "the jury's resolution of a factual issue is clearly at variance with the proffered testimony" (Fisk v City of New York, 74 AD3d 658, 659 [2010]). That is not the case here.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2011

CLERK