| Kozlowski v Oana |
| 2013 NY Slip Op 00185 [102 AD3d 751] |
| January 16, 2013 |
| Appellate Division, Second Department |
| Julia Kozlowski et al.,Appellants-Respondents, v Gabriela Oana et al.,Respondents-Appellants. |
—[*1] Rawle & Henderson, LLP, New York, N.Y. (Robert A. Fitch and Marc A. Shermanof counsel), for respondents-appellants.
In an action, inter alia, to recover damages for dental malpractice, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Murphy, J.), entered August 31, 2011, as denied that branch of theircross motion which was for summary judgment on the issue of liability on their cause ofaction alleging dental malpractice, and the defendants cross-appeal, as limited by theirbrief, from so much of the same order as granted that branch of the plaintiffs' crossmotion which was to preclude the defendants from offering an expert affirmation insupport of their motion for summary judgment dismissing the complaint, and denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
The plaintiffs, Julia Kozlowski and her husband Gary Kozlowski, suing derivatively,commenced the instant action alleging that Julia Kozlowski sustained an injury when herright lingual nerve was severed during a wisdom tooth extraction performed by thedefendant Gabriela Oana. The complaint asserted causes of action to recover damages,inter alia, for dental malpractice and lack of informed consent.
The defendants moved for summary judgment dismissing the complaint, relying on,among other things, an expert affirmation from oral surgeon Dr. Frank Weber. Theplaintiffs cross-moved to preclude the defendants from offering Dr. Weber's expertaffirmation in support of their motion, and for summary judgment on the issue of liabilityon their cause of action alleging dental malpractice. The Supreme Court granted thatbranch of the plaintiffs' cross motion which was to preclude the defendants from offeringDr. Weber's expert affirmation in support of their motion for summary judgment, deniedthe defendants' motion for summary judgment dismissing the complaint, and denied thatbranch of the plaintiffs' cross motion which was for summary judgment on the issue ofliability on their cause of action alleging dental malpractice.[*2]
Contrary to the defendants' contention, theSupreme Court providently exercised its discretion in granting that branch of theplaintiffs' cross motion which was to preclude the defendants from offering Dr. Weber'sexpert affirmation in support of their motion for summary judgment. Where, as here, adefendant fails to disclose an expert witness in its answer to a plaintiff's discoverydemand pursuant to CPLR 3101 (d) (1) (i) prior to the filing of the note of issue andcertificate of readiness, the Supreme Court has the discretion to consider an affirmationfrom that expert in the context of a post-note of issue, timely motion for summaryjudgment, or to impose an appropriate sanction as the circumstances may warrant (see Rivers v Birnbaum, 102AD3d 26, 44 [2012]). Here, the Supreme Court providently exercised its discretionin granting that branch of the plaintiffs' cross motion which was to preclude thedefendants from offering Dr. Weber's expert affirmation in support of their motion forsummary judgment in light of, inter alia, the defendants' untimely disclosure of Dr.Weber as their expert, their failure to provide any excuse for the delay, and circumstancesindicating that their failure to disclose was wilful (see id.; Kopeloff v Arctic Cat, Inc., 84AD3d 890, 890-891 [2011]).
The Supreme Court properly denied the defendants' motion for judgment as a matterof law dismissing the cause of action to recover damages for dental malpractice. In adental malpractice action, the requisite elements of proof are a deviation or departurefrom accepted standards of dental practice, and that such departure was a proximatecause of the plaintiff's injuries (see McGuigan v Centereach Mgt. Group, Inc., 94 AD3d955, 956 [2012]; Zito vJastremski, 84 AD3d 1069, 1070 [2011]). A defendant moving for summaryjudgment has the initial burden of establishing that he or she did not depart from goodand accepted practice, or if there was such a departure, that it was not a proximate causeof the plaintiff's injuries (seeSharp v Weber, 77 AD3d 812, 814 [2010]). Here, the defendants established,prima facie, that Oana did not depart from good and accepted practice. However, inopposition, the plaintiffs raised a triable issue as to a departure with, inter alia, theaffirmation of their expert, who opined that the severed nerve suffered by the injuredplaintiff could not have occurred unless Oana deviated from accepted dental practice bystraying outside the field of surgery. Accordingly, the Supreme Court properly deniedthat branch of the defendants' motion which was for judgment as a matter of lawdismissing the dental malpractice cause of action (see Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).
Further, the defendants failed to make a prima facie showing of their entitlement tojudgment as a matter of law dismissing the cause of action to recover damages for lack ofinformed consent. The consent forms signed by Julia Kozlowski did not establish, as amatter of law, that the injury she allegedly sustained, in its nature and extent, wasconsistent with the type of injury she had been told to consider as being among thereasonably foreseeable risks of the wisdom tooth extraction, or that a reasonable, fullyinformed person in her position would have undergone the procedure despite theexistence of such risks (seeWilson-Toby v Bushkin, 72 AD3d 810, 811 [2010]). As the defendants failed toestablish their prima facie entitlement to judgment as a matter of law dismissing thecauses of action alleging dental malpractice and lack of informed consent, denial of theirmotion was required regardless of the sufficiency of the plaintiffs' opposing papers(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
As to that branch of the plaintiffs' cross motion which was for summary judgment onthe issue of liability on the cause of action alleging dental malpractice, the plaintiffsestablished prima facie entitlement to judgment as a matter of law through, inter alia, theaffirmation of their expert, who opined that the severed nerve suffered by the injuredplaintiff could not have occurred unless Oana deviated from accepted dental practice bystraying outside the field of surgery (see Taylor v Quality Dental Group, 234AD2d 595, 596 [1996]). However, in opposition, the defendants raised a triable issue offact through, among other things, the deposition testimony of Oana, who opined that theanatomical position of the lingual nerve may vary, and that wisdom tooth extraction mayimpact the lingual nerve even if the surgeon does not stray from the field of surgery.Accordingly, the Supreme Court properly denied that branch of the plaintiffs' crossmotion which was for summary judgment on the issue of liability on their cause of actionalleging dental malpractice (see Zuckerman v City of New York, 49 NY2d 557,562 [1980]). Mastro, J.P., Angiolillo, Sgroi and Miller, JJ., concur.