| McGuigan v Centereach Mgt. Group, Inc. |
| 2012 NY Slip Op 02846 [94 AD3d 955] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Michael McGuigan, Respondent, v CentereachManagement Group, Inc., et al., Defendants, and Stony Brook Family Dentistry,Appellant. |
—[*1] Law Offices of Kenneth M. Mollins, P.C., Melville, N.Y. (Peter Citrin of counsel), forrespondent.
In an action, inter alia, to recover damages for wrongful death, the defendant Stony BrookFamily Dentistry appeals, as limited by its brief, from (1) so much of an order of the SupremeCourt, Suffolk County (Mayer, J.), dated September 28, 2010, as denied those branches of itsmotion which were for summary judgment dismissing the third and fourth causes of actionalleging dental malpractice insofar as asserted against it, and (2) so much of an order of the samecourt dated June 14, 2011, as, upon reargument, adhered to the determination in the order datedSeptember 28, 2010.
Ordered that the appeal from the order dated September 28, 2010, is dismissed, as that orderwas superseded by the order dated June 14, 2011, made upon reargument; and it is further,
Ordered that the order dated June 14, 2011, is reversed insofar as appealed from, on the law,upon reargument, the determination in the order dated September 28, 2010, denying thosebranches of the motion of the defendant Stony Brook Family Dentistry which were for summaryjudgment dismissing the third and fourth causes of action alleging dental malpractice insofar asasserted against it is vacated and, thereupon, those branches of the motion are granted; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Stony Brook Family Dentistry.
Contrary to the plaintiff's contention, the Supreme Court properly determined, uponreargument, that the allegations in the complaint seeking to impose liability on the defendantStony Brook Family Dentistry (hereinafter Stony Brook) for the decision of the dentist itemployed to prescribe Vicodin to the decedent sounded in dental malpractice rather than ordinarynegligence (see Santana v St. VincentCatholic Med. Ctr. of N.Y., 65 AD3d 1119, 1119-1120 [2009]; Pacio v Franklin [*2]Hosp., 63 AD3d 1130, 1132 [2009]).
The requisite elements of proof in a dental malpractice action are a deviation or departurefrom accepted standards of dental practice, and that such departure was a proximate cause of theplaintiff's injuries (see Sharp vWeber, 77 AD3d 812, 813 [2010]; Koi Hou Chan v Yeung, 66 AD3d 642 [2009]; Cohen v Kalman, 54 AD3d 307[2008]). Here, Stony Brook established its entitlement to judgment as a matter of law bysubmitting an affirmation from its dental expert demonstrating that the dentist it employed didnot depart from good and accepted dental practice when, in prescribing Vicodin to the decedent,he relied on the decedent's specific representation that he did not have a chemical dependency.The expert's opinion was neither speculative nor conclusory, had a factual foundation in therecord, and adequately addressed the allegations of the plaintiff's bill of particulars (see Roca v Perel, 51 AD3d 757,759 [2008]; Chance v Felder, 33AD3d 645, 646 [2006]). In opposition, the plaintiff, who did not submit an affidavit from hisown expert, failed to raise a triable issue of fact (see Savage v Quinn, 91 AD3d 748 [2012]; Thomas v Richie, 8 AD3d 363,364 [2004]).
Accordingly, upon reargument, the Supreme Court should have granted those branches ofStony Brook's motion which were for summary judgment dismissing the third and fourth causesof actions alleging dental malpractice insofar as asserted against it. Skelos, J.P., Belen, Lott andMiller, JJ., concur.