Opinion
0746-12
12-07-2012
Arnee Tolbert, Plaintiff v. Dr. Robert Rioseco c/o The Center for Cosmetic Dentistry, Defendant.
Montgomery Delaney, Esq. Attorney for Plaintiff Westermann, Sheehy, Keenan Samaan & Aydelott, LLP Timothy M. Smith Attorneys for Defendant
Montgomery Delaney, Esq.
Attorney for Plaintiff
Westermann, Sheehy, Keenan
Samaan & Aydelott, LLP
Timothy M. Smith
Attorneys for Defendant
, J.
Plaintiff brought this proceeding to recover five thousand dollars ($5,000.00) alleging "damage caused to a person" and a "failure to provide goods paid for". Plaintiff stated that she went to defendant to provide four (4) porcelain crowns on implants put in her mouth by another dentist some six to eight months prior. Plaintiff alleged that defendant agreed to do this after his examination of her mouth. Plaintiff financed the work to be done through Chase Bank health advance.
Plaintiff further alleges that when she came home after defendant did a tangential root canal and prep for a temporary bridge and crowns she was uncomfortable with the service provided. Defendant alleges that plaintiff yelled at him in front of staff and other patients, that the bridge was uncomfortable and the bite was wrong. Plaintiff went to another dentist and wrote letters for defendant to cease all work.
Defendant stated that he had the crowns fabricated by an outside lab and that any uncomfortable feelings were caused by the prior dentist not putting the implants in the optimal places.
Plaintiff stated that Chase Bank paid the defendant eight thousand five hundred and fifty eight dollars and sixty one cents ($8,558.61) and he owes her six thousand four hundred and forty one dollars and thirty nine cents ($6,441.39) after deduction for the services rendered appropriately. Plaintiff states that the crowns produced by defendant were not porcelain as required and therefore she need not pay for them.
After hearing the testimony of the parties, judging their credibility and after reviewing the exhibits submitted, I find for defendant. The claim is dismissed. It is very difficult to judge the basis for plaintiff's claim. Her arguments against the temporaries sound in malpractice not contract. Her failure to produce expert testimony on her "injury to a person claim" is fatal. See Bryan v. Staten Island University Hospital 54 AD 3rd 793 (2nd Dept 2008). The same requirement of expert testimony applies to a claim brought in small claims court. See Train v. Erfanian 34 Misc 3rd 147(A) (App Term 9th & 10th Districts, 2012).
With regard to the claim for a failure to provide goods paid for, the plaintiff has failed to prove by a preponderance of the evidence that the defendant gave her a specific promise to give her a definitive result. There appears to have been no contractual meeting of the minds. See Clarke v. Mikael 238 AD2d 538 (2nd Dept 1997) The above meets this Court's statutory charge to do substantial justice between the parties.
The above constitutes the Decision and Order of the Court.
Dated: Mount Vernon, New York
December 7, 2012
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon