| LaVecchia v Bilello |
| 2010 NY Slip Op 06363 [76 AD3d 548] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Tracy Ann LaVecchia, Respondent, v Rita Marie Bilello,Defendant, and Raphaelson Dental Associates, Appellant. |
—[*1] Gary Greenwald, Chester, N.Y. (David A. Brodsky, Mark Leffler, and Jamie Greenwald ofcounsel), for respondent.
In an action to recover damages for dental malpractice, the defendant Raphaelson DentalAssociates appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Rebolini, J.), dated May 7, 2009, as denied its motion for summary judgmentdismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The requisite elements of proof in a dental malpractice action are a deviation or departurefrom accepted standards of dental practice, and evidence that such departure was a proximatecause of the plaintiff's injury (see KoiHou Chan v Yeung, 66 AD3d 642 [2009]; Terranova v Finklea, 45 AD3d 572 [2007]; Clarke v Limone, 40 AD3d 571[2007]). Therefore, on a motion for summary judgment, the defendant dentist has the initialburden of establishing the absence of any departure from good and accepted practice, or that theplaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642;Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368 [2004]). "To sustain thisburden, the defendant must address and rebut any specific allegations of malpractice set forth inthe plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790,791 [2006]; Johnson v Ladin, 18AD3d 439 [2005]).
Here, as the Supreme Court correctly determined, the defendant Raphaelson DentalAssociates (hereinafter RDA) failed to make a prima facie showing of its entitlement tojudgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dentalreport by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25AD3d 649, 650 [2006]). Moreover, the affidavit of RDA's dental expert was conclusory, andfailed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff'sverified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward vEngel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita MarieBilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as amatter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff'sopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Koi Hou Chan v Yeung, 66 AD3d at 644). Skelos, J.P., Santucci, Dickerson andLeventhal, JJ., concur.