Brady v. Public Service Mutual Insurance ( 1990 )

In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff John Brady, D.D.S., in an underlying action entitled Green v Brady (index No. 75/85), pending in the Supreme Court, Dutchess County, the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Beisner, J.), entered November 17, 1988, which, inter alia, declared that the defendant was not obligated to defend or indemnify the plaintiff John Brady, D.D.S., in the underlying action.

Ordered that the judgment is affirmed, with costs.

From May of 1980 through August of 1981, the appellant John Brady, D.D.S., was covered by a dental malpractice insurance policy issued by the respondent, Public Service Mutual Insurance Company. Beginning September 1,1981, Dr. Brady was covered by a dental malpractice insurance policy issued by the appellant Aetna Casualty & Surety Company. We agree with the Supreme Court that the failure of Dr. Brady to obtain a complete medical history from his patient, Thomas A. Green, Sr., on May 13, 1980, was not a proximate cause of the injuries suffered by Green as a result of an October 2, 1981, tooth extraction performed by Dr. Brady. Accordingly, the negligence, if any, committed by Dr. Brady occurred solely while the insurance policy issued by the appellant Aetna Casualty & Surety Company was in effect. Mengano, P. J., Thompson, Sullivan and Rosenblatt, JJ., concur.