Garcea v. Kiman

—Order, Appellate Term, First Judicial Department, entered July 27, 1992, which affirmed the judgment of Civil Court, New York County (Alfred Toker, J.), entered May 8,1990, upon jury verdict, dismissing the complaint, unanimously affirmed, without costs. 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 AD2d 543, lv denied 79 NY2d 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 AD2d 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 191 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 NY2d 636; Matter of Housing Dev. Fund Co. v County of Rockland, 134 AD2d 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.