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

Patricia J. CLASSEN, Respondent, v. Larry R. ASHKINAZY, Appellant.

Decided: February 25, 1999

Before:  MIKOLL, J.P., CREW III, PETERS and GRAFFEO, JJ. Newman, Fitch, Altheim & Myers (James P. Tenney of Leahey & Johnson), New York City, for appellant. Thaler & Thaler (David W. Feeney II of counsel), Ithaca, for respondent.

Appeal from a judgment of the Supreme Court (Relihan Jr., J.), entered May 15, 1998 in Tompkins County, upon a verdict rendered in favor of plaintiff.

This appeal is from a judgment awarding plaintiff $60,000 in damages for dental malpractice.   The jury apportioned $40,000 for pain and suffering and $20,000 for dental related expenses to date.

Plaintiff testified that she underwent a dental procedure to place a lower dental implant which was to serve as an anchor for a permanent denture.   Plaintiff had lost most of her lower teeth in an automobile accident.   The implant ultimately failed and this lawsuit ensued.

 On appeal, defendant urges reversal of the judgment because of plaintiff's counsel's prejudicial remarks made in summation in which counsel referred to a Jewish wedding custom of breaking a glass as symbolic of the fragility of marriage.   Counsel's analogizing this act to the destruction of trust between plaintiff and defendant in their dentist-patient relationship, defendant urges, was an effort to remind the jury that defendant was Jewish, and was an improper reference to race, nationality or religion.   We reject the contention.   The record does not point out that defendant is Jewish.   Aside from that, there was nothing inherently offensive in the remark and its significance was not related in any way to defendant's being Jewish.

 Defendant next contends that plaintiff's counsel improperly impugned defendant's credibility by comparing defendant's initial X ray of plaintiff's teeth and jaw with an X ray of the same area taken by Edward De Furia, who was summoned as an expert in the proceedings on plaintiff's behalf.   In summation, plaintiff's counsel asserted that the De Furia X ray showed a fragment in plaintiff's jaw.   Counsel urged the jury to compare the two X rays and suggested that the jury observe the uneven edge of the copy X ray produced by defendant.   Counsel then asked the jury to decide if the X ray was altered with the motive of cutting out the signs of a fragment in plaintiff's jaw, thereby undercutting defendant's contention that plaintiff failed to tell defendant of the fracture of her jaw in an auto accident.

While we agree that plaintiff's counsel pushed the boundaries of fair comment too far because the record did not support the theory that there was a fragment depicted on the X ray or that the defendant's X ray had been cut, the misconduct does not constitute reversible error.   The presence of a fragment in plaintiff's jaw was a tangential issue made relevant only because defense counsel attacked plaintiff's credibility in part on the ground that she failed to tell defendant about the auto accident which damaged her jaw and brought her to him for prosthetic treatment.   The disastrous result of the accident was so obvious, leaving plaintiff with scars and all her lower teeth missing, that it would have been incredible for the jury to infer that her condition was not discussed by plaintiff and defendant or that defendant missed the presence of a foreign object in her jaw as portrayed in some of the X rays.   The attack on defendant's credibility was insignificant in view of the considerable other evidence in the record of defendant's negligence.   We note that defendant contributed to the problem by failing to produce the original X ray or explain why the duplicate version appeared to have an uneven edge.

We reject defendant's objection to the admission of a copy of an X ray made by plaintiff's expert De Furia.   The record fails to support the contention raised on appeal that a copy of an X ray is not accurate.   Defendant's alternative argument, first raised on appeal, that the X ray was not admissible under CPLR 4539 in the absence of proof that the copy was made in the ordinary course of business, will not be addressed here.   Defendant's failure to register his objection on this ground forecloses its consideration on appeal.

Defendant urges that the verdict is against the weight of evidence based on his experts' verifications that he acted in accordance with accepted dental practices and standards.   We disagree.   There was ample contrary expert testimony in the record which the jury was entitled to credit.

 The special damages plaintiff has proven total only $13,000, $10,000 in payments to defendant and $3,000 for traveling expenses.   Special damages may be awarded only for costs actually incurred (see, De Peigne v. Medical Ctr. & Med. & Health Research Assn. of N.Y. City, 251 A.D.2d 47, 674 N.Y.S.2d 14).   The award of $20,000 granted by the jury exceeds the proven special damages by $7,000.   The cost of other claimed remedial work was never proven and cannot be considered.   The judgment should be modified accordingly.

 We reject defendant's contention that the award of $40,000 for plaintiff's pain and suffering was excessive.   The amount of damages to be awarded is primarily a question of fact, and considerable deference should be accorded to the interpretation by the jury (see, Levine v. East Ramapo Cent. School Dist., 192 A.D.2d 1025, 597 N.Y.S.2d 239).   The amount was reasonable in view of the excruciating procedures plaintiff endured and the subsequent pain and suffering of some six months' duration (see, Kushner v. Mollin, 181 A.D.2d 866, 581 N.Y.S.2d 836).

We decline to discuss the other issues raised by defendant, finding them to be either without merit or irrelevant.

ORDERED that the judgment is modified, on the law and the facts, without costs by reducing the award for special damages from $20,000 to $13,000, and, as so modified, affirmed.



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