GARCEA v. KIMAN

In this dental malpractice action, the trial court's jury charge on foreseeability did not constitute reversible error ( see, Capuccio v. City of New York, 174 A.D.2d 543, lv denied 79 N.Y.2d 751). It did not affect the clear instructions concerning the duty defendants owed plaintiff, determined by the dentist-patient relationship ( see, Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601) and the instructions on the malpractice standard itself were in all respects proper ( see, PJI 2:150).

Although plaintiff had subpoenaed defendants to testify on her case, she did so five months before the trial actually commenced, and the record fails to support her claim, disputed by defendants, that she provided reasonable notice to them that she intended to call them as witnesses on the first day of the trial ( see, CPLR 2305 [a]). Thus, since the defendants were not required to be in court, the direction to plaintiff to proceed with her case was proper ( see, Feldsberg v. Nitschke, 49 N.Y.2d 636; Matter of Housing Dev. Fund Co. v. County of Rockland, 134 A.D.2d 594). In any event, both defendants testified the following week and plaintiff has made no showing that the variance in the order of witnesses prejudiced her case.

We have considered plaintiff's remaining contentions and find them to be without merit.

Concur — Sullivan, J.P., Rosenberger, Wallach and Rubin, JJ.