DAVANZO v. FISHER (2003)

Judgment, Supreme Court, New York County (Eileen Bransten, J.), entered March 7, 2002, which, after a jury trial, in this action for dental malpractice, inter alia, awarded plaintiff Dominick Davanzo damages in the amount of $271,600, unanimously affirmed, without costs.

 The trial court properly dismissed defendant's genetic predisposition defense at the conclusion of the defense case since there was no evidentiary basis for the defense.   Although plaintiff testified that his mother had lost her teeth, there was no evidence that her tooth loss had been attributable to periodontal disease, a threshold necessity.   Since the capacity of defendant's employee to provide material, non-cumulative testimony respecting plaintiff's care and treatment while a patient in defendant's dental practice was conceded, and defendant did not, despite its employee's agreement to testify, make a diligent effort to secure her court appearance (cf.   People v. Skaar, 225 A.D.2d 824, 638 N.Y.S.2d 846, lv. denied 88 N.Y.2d 854, 644 N.Y.S.2d 700, 667 N.E.2d 350), the court's delivery of a missing witness charge constituted a proper exercise of discretion (see Spoto v. S.D.R. Constr., 226 A.D.2d 202, 204, 641 N.Y.S.2d 20).   The jury's pain and suffering award does not deviate materially from what is reasonable compensation under the circumstances (see CPLR 5501[c] ).  We have considered defendant's remaining arguments and find them unavailing.