Opinion
2016–04454 Index No. 1195/13
11-28-2018
Lee SILVERI, Appellant, v. Sigalit GLASER, etc., et al., Respondents.
Lutfy & Santora, Staten Island, N.Y. (James L. Lufty and Joseph Santora of counsel), for appellant. Fumuso, Kelly, Swart, Farrell, Polin & Christesen LLP, Hauppauge, N.Y. (Scott G. Christesen and Michelle C. Acosta of counsel), for respondent Sigalit Glaser. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondents Samuel Horowitz, Implant Center of Rockland, Inc., and Implant, Cosmetic & General Dentistry of Rockland.
Lutfy & Santora, Staten Island, N.Y. (James L. Lufty and Joseph Santora of counsel), for appellant.
Fumuso, Kelly, Swart, Farrell, Polin & Christesen LLP, Hauppauge, N.Y. (Scott G. Christesen and Michelle C. Acosta of counsel), for respondent Sigalit Glaser.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C. Selmeci of counsel), for respondents Samuel Horowitz, Implant Center of Rockland, Inc., and Implant, Cosmetic & General Dentistry of Rockland.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, HECTOR D. LASALLE, JJ.
DECISION & ORDER
ORDERED that the judgment is modified, on the law, by (1) deleting the provision thereof dismissing the causes of action alleging dental malpractice and lack of informed consent insofar as asserted against the defendant Sigalit Glaser, (2) deleting the provision thereof dismissing the cause of action alleging dental malpractice insofar as asserted against the defendant Samuel Horowitz, and (3) deleting the provision thereof dismissing the cause of action alleging vicarious liability insofar as asserted against the defendant Implant, Cosmetic & General Dentistry of Rockland; as so modified, the judgment is affirmed insofar as appealed from, with one bill of costs to the plaintiff, those branches of the motion of the defendant Sigalit Glaser which were for summary judgment dismissing the causes of action alleging dental malpractice and lack of informed consent insofar as asserted against her are denied, those branches of the motion of the defendants Samuel Horowitz, Implant Center of Rockland, Inc., and Implant, Cosmetic & General Dentistry of Rockland which were for summary judgment dismissing the causes of action alleging dental malpractice insofar as asserted against the defendant Samuel Horowitz, and alleging vicarious liability insofar as asserted against the defendant Implant, Cosmetic & General Dentistry of Rockland are denied, and the order is modified accordingly.
The plaintiff commenced this action, inter alia, to recover damages for dental malpractice against the defendants Sigalit Glaser and Samuel Horowitz (hereinafter together the dentists), the defendant Implant, Cosmetic & General Dentistry of Rockland (hereinafter ICGDR), by whom the dentists were employed, and the defendant Implant Center of Rockland, Inc. (hereinafter ICR). The plaintiff alleged that the dentists departed from accepted standards of dental practice when they extracted his wisdom tooth, that they failed to obtain his informed consent for the surgery, and that ICR and ICGDR were vicariously liable for the dentists' malpractice. Glaser moved, and Horowitz, ICR, and ICGDR separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the motions, and entered judgment accordingly. The plaintiff appeals from the judgment.
"It is axiomatic that issue finding rather than issue determination is central to deciding a motion for summary judgment" ( Downing v. Schreiber, 176 A.D.2d 781, 782, 575 N.Y.S.2d 109 ). In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party (see Fagan v. Panchal, 77 A.D.3d 705, 909 N.Y.S.2d 127 ).
"The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries" ( Sharp v. Weber, 77 A.D.3d 812, 813, 909 N.Y.S.2d 152 ; see Garcia v. Richer, 132 A.D.3d 809, 18 N.Y.S.3d 401 ; Cohen v. Kalman, 54 A.D.3d 307, 863 N.Y.S.2d 63 ). "A defendant moving for summary judgment has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiff's injuries" ( Kozlowski v. Oana, 102 A.D.3d 751, 752–753, 959 N.Y.S.2d 500 ; see Garcia v. Richer, 132 A.D.3d at 810, 18 N.Y.S.3d 401 ; Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d 712, 4 N.Y.S.3d 59 ; Sharp v. Weber, 77 A.D.3d at 814, 909 N.Y.S.2d 152 ). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" ( Zito v. Jastremski, 84 A.D.3d 1069, 1070, 925 N.Y.S.2d 91 ; see Mathias v. Capuano, 153 A.D.3d 698, 60 N.Y.S.3d 327 ; Koi Hou Chan v. Yeung, 66 A.D.3d 642, 887 N.Y.S.2d 164 ). To defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing (see Stukas v. Streiter, 83 A.D.3d 18, 23–24, 918 N.Y.S.2d 176 ; Zito v. Jastremski, 84 A.D.3d at 1070–1071, 925 N.Y.S.2d 91 ). However, mere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim at issue, are insufficient to defeat summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zito v. Jastremski, 84 A.D.3d at 1071, 925 N.Y.S.2d 91 ).
Here, the dentists and ICGDR demonstrated their prima facie entitlement to judgment as a matter of law dismissing the causes of action alleging dental malpractice and vicarious liability insofar as asserted against them. Their experts' affidavits, submitted in support of their motions, established that the dentists did not depart from good and accepted dental practice when they treated the plaintiff, and, in any event, that their treatment was not a proximate cause of his alleged injuries (see Garcia v. Richer, 132 A.D.3d at 809, 18 N.Y.S.3d 401 ; Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d at 714, 4 N.Y.S.3d 59 ). However, in opposition to the motions, the plaintiff's expert affirmation raised a triable issue of fact with respect to the causes of action alleging dental malpractice and vicarious liability (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Chan v. Toothsavers Dental Care, Inc., 125 A.D.3d at 713, 4 N.Y.S.3d 59 ; Kozlowski v. Oana, 102 A.D.3d at 753, 959 N.Y.S.2d 500 ; Del Bene v. Frank C. Perry, DDS, P.C., 83 A.D.3d 771, 921 N.Y.S.2d 150 ; Darwick v. Paternoster, 56 A.D.3d 714, 868 N.Y.S.2d 698 ; Singh v. Boodhoo, 17 A.D.3d 345, 791 N.Y.S.2d 842 ). Accordingly, those branches of the separate motions should have been denied.
Additionally, since Glaser's submissions included the plaintiff's deposition transcript, in which the plaintiff testified that Glaser never explained the risks of the surgery or whether there were any alternatives, Glaser failed to establish, prima facie, that there were no triable issues of fact with respect to the lack of informed consent cause of action insofar as asserted against her (see Godel v. Benjy Goldstein and George Freud, D.D.S., PLLC, 155 A.D.3d 939, 64 N.Y.S.3d 127 ; Mathias v. Capuano, 153 A.D.3d at 698, 60 N.Y.S.3d 327 ; Dyckes v. Stabile, 153 A.D.3d 783, 61 N.Y.S.3d 110 ; Lavi v. NYU Hosps. Ctr., 133 A.D.3d 830, 21 N.Y.S.3d 143 ; Koi Hou Chan v. Yeung, 66 A.D.3d at 643–644, 887 N.Y.S.2d 164 ). Accordingly, the Supreme Court should have denied that branch of Glaser's motion which was for summary judgment dismissing the lack of informed consent cause of action insofar as asserted her.
Horowitz established, prima facie, that he was under no obligation to obtain the plaintiff's informed consent (see Tibodeau v. Keeley, 208 A.D.2d 610, 617 N.Y.S.2d 183 ) and, in opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination to grant that branch of the motion which was for summary judgment dismissing the lack of informed consent cause of action insofar as asserted against Horowitz.
ICR established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging vicarious liability by its submissions, which demonstrated that it is not a dental practice, it is a corporation established for the purpose of purchasing dental supplies, that it had no employees, and that it had no patients. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court's determination to grant that branch of the motion which was for summary judgment dismissing the cause of action alleging vicarious liability insofar as asserted against ICR.
MASTRO, J.P., SGROI, DUFFY and LASALLE, JJ., concur.