DIEL v. BRYAN

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Supreme Court, Appellate Division, Fourth Department, New York.

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.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., MARTOCHE, SMITH, GREEN, AND GORSKI, JJ. Feldman, Kieffer & Herman, LLP, Buffalo (Gordon D. Tresch of Counsel), for Defendant-Appellant Amy Bryan, D.D.S. Gibson, McAskill & Crosby, LLP, Buffalo (Sally J. Broad of Counsel), for Defendant-Appellant Gilbert Schulenberg, D.D.S., Doing Business as Buffalo OralSurgery Associates. Michael B. Jones, Buffalo, for Plaintiff-Respondent.

 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 an anesthesiologist stating that defendant deviated from the acceptable standards of care in her administration of anesthesia to decedent (see Bell v. Ellis Hosp., 50 A.D.3d 1240, 1242, 854 N.Y.S.2d 604;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   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 A.D.3d 1247, 852 N.Y.S.2d 542;  see generally Matott v. Ward, 48 N.Y.2d 455, 459, 423 N.Y.S.2d 645, 399 N.E.2d 532).   Indeed, plaintiff's expert “was not required to have practiced the same specialty as defendant” (Robertson v. Greenstein, 308 A.D.2d 381, 382, 764 N.Y.S.2d 413, lv. dismissed 2 N.Y.3d 759, 778 N.Y.S.2d 776, 811 N.E.2d 38;  see generally Fuller v. Preis, 35 N.Y.2d 425, 431, 363 N.Y.S.2d 568, 322 N.E.2d 263).   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 A.D.3d 757, 759, 859 N.Y.S.2d 203).

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: