| Zito v Jastremski |
| 2011 NY Slip Op 04240 [84 AD3d 1069] |
| May 17, 2011 |
| Appellate Division, Second Department |
| Denice LaBarca Zito, Appellant, v Edward Jastremski, etal., Respondents. |
—[*1] Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (Joseph D. Furlong of counsel), forrespondents Edward Jastremski and Edward Jastremski, D.D.S., P.C. Charles J. Siegel, New York, N.Y. (Christopher A. South of counsel), for respondent RobertMartini.
In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Richmond County (Straniere, J.), dated October 20, 2009,which granted the motion of the defendants Edward Jastremski and Edward Jastremski, D.D.S.,P.C., and the separate motion of the defendant Robert Martini for summary judgment dismissingthe complaint insofar as asserted against each of them, (2) a judgment of the same court datedDecember 2, 2009, which, upon the order dated October 20, 2009, is in favor of the defendantsand against her dismissing the complaint, and (3), as limited by her brief, from so much of anorder of the same court dated May 27, 2010, as, in effect, denied that branch of her motion whichwas for leave to renew her opposition to the defendants' respective motions for summaryjudgment.
Ordered that the appeal from the order dated October 20, 2009, is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that the order dated May 27, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendants appearing separately and filingseparate briefs.
The requisite elements of proof in a dental malpractice action are a deviation or departure[*2]from accepted standards of dental practice, and that suchdeparture was a proximate cause of the plaintiff's injuries (see Sharp v Weber, 77 AD3d 812, 813 [2010]; Koi Hou Chan v Yeung, 66 AD3d642 [2009]; Cohen v Kalman,54 AD3d 307 [2008]). Consequently, on a motion for summary judgment, a defendant hasthe initial burden of establishing that he or she did not depart from good and accepted practice, orif there was such a departure, that it was not a proximate cause of the plaintiff's injuries (see Myers v Ferrara, 56 AD3d 78,83 [2008]; Larsen v Loychusuk, 55AD3d 560, 561 [2008]; Terranova vFinklea, 45 AD3d 572 [2007]). "To sustain this burden, the defendant must address andrebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (KoiHou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791 [2006]; Johnson v Ladin, 18 AD3d 439[2005]).
To defeat summary judgment, the nonmoving party need only raise a triable issue of factwith respect to the element of the cause of action or theory of nonliability that is the subject ofthe moving party's prima facie showing (see Stukas v Streiter, 83 AD3d 18, 23-24 [2011]). However, mereconclusory allegations of malpractice, unsupported by competent evidence tending to establishthe elements of the claim at issue, are insufficient to defeat summary judgment (see Alvarez vProspect Hosp., 68 NY2d 320, 325 [1986]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]; Gargiulo v Geiss, 40 AD3d 811,812 [2007]).
Here, the defendants met their initial burden of establishing their entitlement to judgment asa matter of law by, among other things, submitting an affidavit of the defendant EdwardJastremski, which detailed the treatment of the plaintiff and concluded that there was nodeparture from accepted standards of dental practice, and that, in any event, any alleged departurewas not a proximate cause of the plaintiff's injuries. In opposition, the affidavit of the plaintiff'sexpert contained only conclusory opinions regarding the defendants' alleged negligence, whichwere insufficient to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d320 [1986]; Gargiulo v Geiss, 40 AD3d at 812; DiMitri v Monsouri, 302 AD2d420, 421 [2003]). Accordingly, the Supreme Court properly granted the defendants' respectivemotions for summary judgment dismissing the complaint insofar as asserted against each ofthem.
The Supreme Court providently exercised its discretion when it, in effect, denied that branchof the plaintiff's motion which was for leave to renew her opposition to the defendants' respectivemotions for summary judgment (see CPLR 2221 [e]; O'Connell v Post, 27 AD3d 631 [2006]; Renna v Gullo, 19 AD3d 472[2005]). The plaintiff sought leave to renew her opposition to the defendants' motions forsummary judgment so that she could submit the dental records relied upon by her expert, whichshe failed to submit with her original opposition. The plaintiff failed to offer a reasonablejustification as to why the proffered evidence was not submitted at the time of the prior motion.A motion for leave to renew is not a second chance freely given to parties who have notexercised due diligence in making their first factual presentation (see Renna v Gullo, 19 AD3d 472[2005]; Hart v City of New York, 5AD3d 438 [2004]; Rubinstein v Goldman, 225 AD2d 328, 328-329 [1996]). Inaddition, the records sought to be submitted would not have changed the prior determinations(see CPLR 2221 [e] [2]). Accordingly, that branch of the motion which was for leave torenew was properly denied. Covello, J.P., Eng, Chambers and Miller, JJ., concur.