| Menard v Feinberg |
| 2009 NY Slip Op 01569 [60 AD3d 1135] |
| March 5, 2009 |
| Appellate Division, Third Department |
| Gerald A. Menard et al., Respondents-Appellants, v MorrisFeinberg, Respondent, and Jerome J. DeSnyder, Appellant. |
—[*1] Scagnelli Law Firm, P.C., Albany (Peter J. Scagnelli of counsel), for respondents-appellants. Napierski, Vandenburgh & Napierski, L.L.P., Albany (Mark J. Dolan of counsel), forrespondent.
Peters, J. Appeals from an order of the Supreme Court (Dawson, J.), entered January 31,2008 in Clinton County, which denied defendant Jerome J. DeSnyder's motion for summaryjudgment dismissing the complaint against him and granted defendant Morris Feinberg's motionfor summary judgment dismissing the complaint against him.
In February 2003, plaintiff Gerald A. Menard (hereinafter plaintiff) sought treatment forswelling of the gums in the upper left portion of his mouth from defendant Jerome J. DeSnyder,his dentist of over 30 years. Following an oral examination and X ray of that portion of plaintiff'smouth, DeSnyder repaired tooth No. 14. When plaintiff presented to DeSnyder's office in April2003, again complaining of swelling in the same region, an X ray was taken which revealed bonedamage around the root of tooth No. 12. As a result, DeSnyder determined that root canaltherapy was needed on tooth No. 12 and referred plaintiff to defendant Morris [*2]Feinberg to perform the procedure. Feinberg performed the rootcanal the following day and prepared tooth No. 12 for DeSnyder to use a post and core in settinga crown. Feinberg thereafter saw plaintiff on two more occasions, the first for a follow-up for theroot canal approximately two weeks after the procedure and the second in May 2003 relating topain in the upper left quadrant of plaintiff's mouth. On both occasions, Feinberg found noclinical signs of infection of tooth No. 12, but X rays taken during the May visit revealed deepdecay on teeth Nos. 15 and 16, which led Feinberg to recommend that these teeth be extracted.In July 2003, DeSnyder prepared and seated the crown on tooth No. 12 without the use of a post.
According to plaintiff's dental records, DeSnyder did not see plaintiff again with respect totooth No. 12 until April 2004, when plaintiff complained of soreness in that tooth. Uponexamining plaintiff, DeSnyder found that the gingival tissue at teeth Nos. 12 and 13 was puffyand inflamed, and an X ray revealed that the root canal on tooth No. 12 was fine but that therewas evidence of possible decay on that tooth. No further treatment was ordered at that time.Plaintiff called DeSnyder's office in June 2004 and advised that the swelling around tooth No. 12was spreading. DeSnyder saw plaintiff the following day and referred him to an endodontist,who referred him to a periodontist because the crown margin appeared open, and this couldallow plaque to enter the crown and cause inflamation. The periodontist found a fractureassociated with the root of tooth No. 12 and extracted the tooth. Following this extraction,plaintiff's pain ceased.
Thereafter, plaintiff and his wife, derivatively, commenced separate actions againstDeSnyder and Feinberg for dental malpractice which were subsequently consolidated by order ofSupreme Court. Following joinder of issue, Feinberg and DeSnyder each moved for summaryjudgment dismissing the complaint. Supreme Court granted Feinberg's motion for summaryjudgment, but denied DeSnyder's motion. DeSnyder now appeals from so much of the order asdenied his summary judgment motion and plaintiffs appeal from that part of the order as grantedFeinberg's motion.
As the proponents of the respective motions for summary judgment in this dentalmalpractice action, Feinberg and DeSnyder "bore the initial burden of establishing that there wasno departure from accepted standards of practice or that plaintiff was not injured thereby" (Amodio v Wolpert, 52 AD3d1078, 1079 [2008]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Theydid so here by submitting their deposition testimony, as well as that of plaintiff, portions ofplaintiff's dental records and their factually specific affidavits concluding that their treatment ofplaintiff was at all times within the accepted standards of dental care (see Suib v Keller, 6 AD3d 805,806 [2004]; Horth v Mansur, 243 AD2d 1041, 1042 [1997]). The burden then shifted toplaintiffs to "establish[ ] a departure from accepted [dental] practice, as well as a nexus betweenthe alleged malpractice and plaintiff's injury" (Rossi v Arnot Ogden Med. Ctr., 268AD2d 916, 917 [2000], lv denied 95 NY2d 751 [2000]; accord Snyder v Simon, 49 AD3d954, 956 [2008]).
In this respect, plaintiffs submitted the affidavits of their dental expert, John Dodes. As tothe treatment provided by Feinberg, Dodes opined that Feinberg should have conducted a morethorough examination of plaintiff prior to performing the root canal, rather than simplyperforming the procedure at DeSnyder's request. More specifically, Dodes stated that a carefulevaluation and additional X rays would have revealed a myriad of problems with other teeth inthe upper left quadrant of plaintiff's mouth, any or all of which could have been the cause of[*3]plaintiff's pain, and opined that a different approach, such asperforming a root canal on tooth No. 14 and extracting teeth Nos. 15 and 16, "may" havealleviated plaintiff's pain without the need to perform the root canal on tooth No. 12. Criticallyabsent from Dodes' affidavit, however, is any indication that the root canal that Feinbergperformed on tooth No. 12 was unnecessary or a definitive statement that the problemsassociated with the other teeth were the actual cause of plaintiff's pain. In fact, the evidence inthe record is to the contrary, since plaintiff himself stated in his deposition that his pain ceasedafter tooth No. 12 was extracted. As Dodes' allegations of malpractice in this regard are "basedon speculation [and] unsupported by competent evidence, [they] are insufficient to meetplaintiff[s'] burden and defeat summary judgment" (Chase v Cayuga Med. Ctr. at Ithaca, 2 AD3d 990, 991 [2003]; see Bell v Ellis Hosp., 50 AD3d1240, 1242 [2008]). Furthermore, although Dodes also opined that the root canal shouldhave been conducted in two sittings, he did not explain how this failure contributed to plaintiff'ssuffering.[FN*]Accordingly, Supreme Court appropriately granted Feinberg's motion for summary judgment.
With respect to DeSnyder, we agree with Supreme Court's conclusion that Dodes' affidavitsufficiently created a triable issue of fact as to DeSnyder's malpractice. Dodes opined thatDeSnyder deviated from the acceptable standard of care in fitting the crown on tooth No. 12, inthat he failed to install a post and core and did not attach the crown to a healthy portion of thetooth. Dodes further opined that the improper setting "ma[de] the crown act like a fulcrumexerting pressure on the tooth" and was, within a reasonable degree of medical certainty, thecause of plaintiff's tooth fracture, which ultimately required extraction of the tooth. As Dodes'affidavit adequately set forth the manner in which DeSnyder deviated from the standard of careand the causal nexus between the malpractice and plaintiff's injury, it was sufficient to defeatDeSnyder's summary judgment motion.
Additionally, we reject DeSnyder's contention that summary judgment is warranted becausehis decision to fit the crown without the use of a post was an "error in judgment," for whichliability cannot ensue (see generally Nestorowich v Ricotta, 97 NY2d 393, 398-400[2002]). DeSnyder neither stated nor presented any evidence that the setting of the crownwithout a post was a medically acceptable alternative under the circumstances presented (seeid. at 399; Martin v Lattimore Rd. Surgicenter, 281 AD2d 866, 866-867 [2001]), andfactual issues exist as to whether his decision not to use a post and core was the product of acareful examination of plaintiff following the root canal (see Fotinas v Westchester CountyMed. Ctr., 300 AD2d 437, 439 [2002]; Pigno v Bunim, 43 AD2d 718, 719 [1973],affd 35 NY2d 841 [1974]).
Cardona, P.J., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Additionally, Dodes' statementsthat Feinberg failed to review plaintiff's dental records prior to performing the root canal andshould have recommended extraction of teeth Nos. 15 and 16 are contradicted by the record.