Mayblum v. Schwarzbaum

Appeal from order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about February 21, 1997, granting defendant’s [381] motion for summary judgment, deemed an appeal from the ensuing judgment of the same court and Justice, entered April 16, 1997, dismissing the complaint, and, so considered, the judgment is unanimously affirmed, without costs. Plaintiff husband in this dental malpractice action alleges that defendant negligently failed to administer prophylactic antibiotics to him prior to periodontal treatment and that this failure caused him to suffer subsequent cardiac complications. It is undisputed, however, that unless plaintiff had had a heart murmur, prophylactic antibiotic treatment would not have been indicated and plaintiff’s medical records demonstrate conclusively that at the time of plaintiff’s periodontal treatment he had not been diagnosed as suffering from a heart murmur. Plaintiff’s argument that the dispositive medical records, obtained from his treating internist of the previous 20 years, did not constitute evidentiary proof in admissible form has been waived since it was not advanced in the motion court (see, Celentano v St. Luke’s Roosevelt Hosp. Med. Ctr., 170 AD2d 198, 199), and, in any event, the subject medical records do qualify as business records (see, 8 NYCRR 29.2 [a] [3]), and, as such, are admissible pursuant to CPLR 4518 (a). We have considered plaintiff’s remaining argument and find it to be without merit. Concur — Lerner, P. J., Sullivan, Nardelli, Rubin and Saxe, JJ.