| Perricone-Bernovich v Gentle Dental |
| 2009 NY Slip Op 01785 [60 AD3d 744] |
| March 10, 2009 |
| Appellate Division, Second Department |
| Barbara Perricone-Bernovich et al., Appellants, v GentleDental et al., Respondents. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), forrespondents.
In an action to recover damages for dental malpractice, etcetera, the plaintiffs appeal from ajudgment of the Supreme Court, Suffolk County (Spinner, J.), entered June 7, 2007, which, uponthe granting of the defendants' motion pursuant to CPLR 4401 for judgment as a matter of lawmade at the close of the plaintiffs' case, and upon the denial of the plaintiffs' request to reopentheir case, dismissed the complaint.
Ordered that the judgment is affirmed, with costs.
The proper legal standard for deciding a defendant's motion pursuant to CPLR 4401 iswhether, viewing the evidence in the light most favorable to the plaintiff, the plaintiff has madeout a prima facie case (see Godlewska vNiznikiewicz, 8 AD3d 430 [2004]; Lyons v McCauley, 252 AD2d 516, 517[1998]). The motion may be granted only if there is no rational process by which the jury couldfind for the plaintiff against the moving defendant (see Nichols v Stamer, 49 AD3d 832, 833 [2008]; Farrukh vBoard of Educ. of City of N.Y., 227 AD2d 440, 441 [1996]).
Here, the plaintiffs allege that the defendant dentist performed crown preparation workwithout first performing a root canal, which caused the injured plaintiff nerve damage andresultant pain and suffering. After the defendant dentist performed work on the injured plaintiff'steeth, the injured plaintiff went to see her primary dentist of 35 years, complaining that she wassuffering from pain as a result of her visit to the defendant dentist. At trial, the injured plaintiff'sprimary dentist testified as the plaintiffs' expert witness. He testified that he was "not quite sure"what the standard of care was and that he was not testifying to give his opinion as to whether thedefendant dentist [*2]deviated from any standard of care but onlyto "tell what [had] happened" to the injured plaintiff. According to the plaintiffs' expert, if thedefendant had performed the root canal before the crown preparation work, the injured plaintiff"probably wouldn't have" suffered from pain.
In order to prove a prima facie case of dental malpractice, a "plaintiff must show that (1)there was a deviation or departure from the requisite standard of dental practice, and (2) thedeparture from the requisite standard of practice was a proximate cause of the complained ofinjury" (Knutson v Sand, 282 AD2d 42, 43 [2001]; see Sohn v Sand, 180 AD2d789, 790 [1992]). Because the plaintiffs' expert specifically stated that he did not form anopinion as to whether the defendant departed from any standard of care and, in fact, was "notquite sure" what the standard of care was, the plaintiffs failed to introduce sufficient evidence ofthe relevant accepted standard of care owed to the injured plaintiff or whether the defendant haddeparted from any standard of care (see Sohn v Sand, 180 AD2d 789, 790 [1992]).Accordingly, the Supreme Court properly granted the defendants' motion pursuant to CPLR 4401made at the close of the plaintiffs' case.
The Supreme Court providently exercised its discretion denying the plaintiffs' request toreopen their case. Both the plaintiffs' and the defendants' counsel questioned the plaintiffs' expertthoroughly in an effort to obtain testimony regarding the standard of care and whether thedefendant dentist's conduct amounted to a departure or deviation from such standard, all to noavail. The plaintiffs' expert specifically stated that he did not form an opinion as to departurefrom the standard of care. He further stated that he was not sure what the standard of care wasand that he was "not looking at it that way." The plaintiffs' expert also admitted that there was anindication, from a "dental point-of-view," to put a crown on the tooth in question. We agree withthe Supreme Court's evaluation that the plaintiffs' expert was not "laboring under any sort ofconfusion or inability to properly express himself." Any attempt to clarify the expert's statementswould not have cured the deficiency in the plaintiffs' prima facie case (see generally Kay Found. v S & F TowingServ. of Staten Is., Inc., 31 AD3d 499, 501 [2006]; Alayo v City of New York,217 AD2d 567 [1995]; Kennedy v Peninsula Hosp. Ctr., 135 AD2d 788, 790 [1987]).Skelos, J.P., Santucci, Balkin and Eng, JJ., concur.