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Diel v. Bryan

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

JULIE DIEL, INDIVIDUALLY AND AS MOTHER AND NATURAL GUARDIAN OF BRANDON DIEL, AN INFANT, AND AS ADMINISTRATRIX OF THE ESTATE OF BRANDON DIEL, DECEASED, PLAINTIFF-RESPONDENT,
v.
AMY BRYAN, D.D.S., GILBERT SCHULENBERG, D.D.S., DOING BUSINESS AS BUFFALO ORAL SURGERY ASSOCIATES, DEFENDANTS-APPELLANTS, ET AL., DEFENDANT.

Appeals from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered February 28, 2008. The order, insofar as appealed from, denied the motion of defendant Amy Bryan, D.D.S. for summary judgment and denied in part the motion of defendant Gilbert Schulenberg, D.D.S., doing business as Buffalo Oral Surgery Associates, for summary judgment.

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.

PRESENT: SCUDDER, P.J., MARTOCHE, SMITH, GREEN, AND GORSKI, JJ.

Now, upon the stipulation discontinuing action signed by the attorneys for defendants-appellants and plaintiff-respondent on September 12, 2008 and filed in the Erie County Clerk's Office on September 18, 2008,

It is hereby ORDERED that said appeal taken by defendant Gilbert Schulenberg, D.D.S., doing business as Buffalo Oral Surgery Associates, is unanimously dismissed upon stipulation and the order is otherwise 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 dental malpractice. Supreme Court properly denied the motion of Amy Bryan, D.D.S. (defendant)for summary judgment dismissing the complaint against her. Although defendant met her initial burden, plaintiff raised a triable issue of fact by submitting the affirmation of ananesthesiologist stating that defendant deviated from the acceptable standards of care in her administration of anesthesia to decedent (see Bell v Ellis Hosp., 50 AD3d 1240, 1242; see generally Zuckerman v City of New York, 49 NY2d 557, 562). Contrary to defendant's contention, the anesthesiologist possessed the requisite skill, training, knowledge and experience to render a reliable opinion with respect to the standard of care applicable to the administration of the anesthesia (see Bickom v Bierwagen, 48 AD3d 1247; see generally Matott v Ward, 48 NY2d 455, 459). Indeed, plaintiff's expert "was not required to have practiced the same specialty as defendant" (Robertson v Greenstein, 308 AD2d 381, 382, lv dismissed 2 NY3d 759; see generally Fuller v Preis, 35 NY2d 425, 431). The affirmation of the anesthesiologist sufficiently set forth defendant's alleged acts of negligence and the consequences thereof such that a trier of fact could conclude that defendant's alleged negligence was a proximate cause of decedent's death (see Roca v Perel, 51 AD3d 757, 759).

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