| Cohen v Kalman |
| 2008 NY Slip Op 06544 [54 AD3d 307] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Rhoda Cohen, Respondent, v Doron Kalman,Appellant. |
—[*1] Becker & D'Agostino, New York, N.Y. (Michael D'Agostino of counsel), forrespondent.
In an action, inter alia, to recover damages for dental malpractice, the defendant appeals fromso much of an order of the Supreme Court, Queens County (Elliot, J.), dated April 25, 2007, asdenied that branch of his motion which was for summary judgment dismissing the cause ofaction to recover damages for dental malpractice.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion which was for for summary judgment dismissing the cause of action torecover damages for dental malpractice is granted.
The plaintiff in a dental malpractice action must establish that the defendant departed fromgood and accepted dental practice and that such departure was a proximate cause of the plaintiff'sinjuries (see Terranova v Finklea,45 AD3d 572 [2007]; Calabrov Hescheles, 22 AD3d 622 [2005]). The defendant, an oral and maxillofacial surgeon,made a prima facie showing of his entitlement to summary judgment based upon his ownaffidavit and the affidavit of another board certified oral and maxillofacial surgeon demonstratingthat he did not depart from good and accepted dental practice when he performed an apicoectomyon the plaintiff and that his treatment was not a proximate cause of her alleged injuries (seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Ennd v Kopp, 48 AD3d 740,740-741 [2008]; Posokhov v Oselkin,44 AD3d 921 [2007]; Starr vRogers, 44 AD3d 646, 648 [2007]).[*2]
In opposition, the plaintiff failed to raise a triable issue offact. The affidavit of the plaintiff's expert, submitted in opposition, failed to raise an issue of factas to whether the defendant's alleged negligence was the proximate cause of her injuries (see Ennd v Kopp, 48 AD3d 740,741 [2008]; Posokhov v Oselkin, 44AD3d 921 [2007]; Starr v Rogers,44 AD3d 646, 648 [2007]; Mosezhnik v Berenstein, 33 AD3d 895, 898 [2006]). While theplaintiff's expert opined that the defendant was negligent in placing a retrograde filling near theapex of the root of the first molar thereby damaging the nerve canal lying below that root, in theplaintiff's bill of particulars, she alleged that her injuries were caused when the defendant severednerves during the apicoectomy. The plaintiff's expert also failed to refute the opinion of thedefendant's expert that the permanent numbness that the plaintiff experienced after theapicoectomy may occur in the absence of any negligence. Rivera, J.P., Skelos, Santucci andBelen, JJ., concur. [See 2007 NY Slip Op 31206(U).]