Matosic v. Gelb

—Judgment, Supreme Court, New York County (Lorraine Miller, J.), entered November 2, 1995 in favor of. defendants and bringing up for review a ruling dismissing the action for dental malpractice at the close of plaintiffs’ case, unanimously affirmed, without costs. The appeal from the order, same court and Justice, entered August 9, 1995, which denied plaintiffs’ motion for "reconsideration” of such ruling, is unanimously dismissed, without costs, as subsumed within the appeal from the judgment. The action was properly dismissed at the close of plaintiffs’ case for failure of their expert witness, who did not specialize in the treatment of temporo-mandibular joint problems, to demonstrate that the pain complained of over the course of many years was in fact due to a temporo-mandibular joint problem, let alone that defendants breached the standard of care for treatment of that disorder, or that the breach of that standard or any of the devices installed by defendants in the injured plaintiff’s mouth, was the proximate cause of her injuries. In essence, plaintiffs’ expert established nothing other than that defendants were not successful in alleviating the symptoms. A doctor or dentist is not a guarantor of correct diagnosis or successful treatment, nor is he or she liable for a mere error in judgment if he or she has considered the patient’s best interest after careful evaluation (see, Bernard, v Block, 176 AD2d 843, 846; Salzman v Alan S. Rosell, D.D.S., P. C., 129 AD2d 833, 835). Nor does the record support plaintiffs’ claim that the trial court frustrated their efforts to prove a prima facie case. In any event, plaintiffs’ failure to move for a mistrial on the ground they now claim amounted to a waiver of the objection (Kamen v City of New York, 169 AD2d 705). Concur—Murphy, P. J., Sullivan, Rubin, Ross and Nardelli, JJ.