| Terranova v Finklea |
| 2007 NY Slip Op 08441 [45 AD3d 572] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Paul Terranova et al., Appellants, v James N. Finklea,Respondent. |
—[*1] Kolenovsky, Speigel & Caputo, New York, N.Y. (Kelly Caputo of counsel), forrespondent.
In an action, inter alia, to recover damages for dental malpractice, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Westchester County(Donovan, J.), dated April 24, 2007, as granted that branch of the defendant's motion which wasfor summary judgment dismissing the first cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the first cause ofaction is denied.
The requisite elements of proof in either a medical or a dental malpractice action are adeviation or departure from accepted standards of practice, and evidence that such departure wasa proximate cause of the plaintiff's injury (see DiGiaro v Agrawal, 41 AD3d 764, 767 [2007]; Keevan v Rifkin, 41 AD3d 661,662 [2007]; Clarke v Limone, 40AD3d 571 [2007]; Calabro vHescheles, 22 AD3d 622 [2005]; Williams v Sahay, 12 AD3d 366, 368 [2004]). Thus, on a motionfor summary judgment, the defendant doctor or dentist has the initial burden of establishing theabsence of any departure from good and accepted practice, or that the plaintiff was not injured byany departure (see DiGiaro v Agrawal, 41 AD3d at 764; Keevan v Rifkin, 41AD3d at 661; Williams v Sahay, 12 AD3d at 366). To sustain this burden, the defendantmust address and rebut any specific allegations of malpractice set forth in the plaintiff's bill ofparticulars (see Ward v Engel, 33AD3d 790, 791 [2006]; Ticali vLocascio, 24 AD3d 430, 431 [2005]; Johnson v Ladin, 18 AD3d 439 [2005]; Berkey v Emma,291 AD2d 517, 518 [2002]; Drago v King, 283 AD2d [*2]603, 603-604 [2001]).
Here, the defendant failed to make a prima facie showing of entitlement to summaryjudgment dismissing the plaintiffs' first cause of action, which is predicated upon dentalmalpractice. The affirmation of the defendant's expert offered only a conclusory opinion that thedefendant appropriately recommended extraction of the subject tooth, and did not address thespecific claims in the plaintiffs' verified bill of particulars that an effort should have been made tosave the tooth with endodontic therapy, and that a fixed rather than a removable dental prothesisshould have been installed. Accordingly, that branch of the defendant's motion which was forsummary judgment dismissing the first cause of action should have been denied withoutconsidering the sufficiency of the plaintiffs' opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Ward v Engel, 33 AD3d 790 [1969]; Johnson v Ladin, 18 AD3d 439[2005]). Miller, J.P., Ritter, Covello and McCarthy, JJ., concur.