| Leighton v Lowenberg |
| 2015 NY Slip Op 00822 [125 AD3d 427] |
| February 3, 2015 |
| Appellate Division, First Department |
[*1]
| Patricia Leighton, Appellant, v MarcLowenberg, D.D.S., et al., Respondents. |
Andrew Molbert, New York, for appellant.
Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel),for respondents.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered October22, 2013, which denied renewal of plaintiff's motion for leave to amend the complaint tothe extent it sought to add claims for lack of informed consent, unanimously affirmed,without costs.
The court providently exercised its discretion in denying plaintiff's motion to renew.Plaintiff did not provide a reasonable justification for failing to submit the requiredexpert affirmation in support of her original motion to amend (see Onglingswan v Chase HomeFin., LLC, 104 AD3d 543 [1st Dept 2013], lv dismissed 22 NY3d 1113[2014]). Even if we were to accept plaintiff's excuse for failing to submit her expert'saffirmation on the earlier motion (see Garner v Latimer, 306 AD2d 209 [1st Dept2003]), the belatedly proffered expert affirmation is insufficient to support the proposedclaims. The expert opined that defendants deviated from accepted dental practice inspecified ways, proximately resulting in harm, but did not state, "with certainty that theinformation defendants allegedly provided to plaintiff before the dental procedures atissue departed from what a reasonable practitioner would have disclosed" (103 AD3d530, 530 [1st Dept 2013]), so as to support a cause of action for lack of informed consent(see Public Health Law § 2805-d [1], [3]; CPLR 4401-a; Orphan v Pilnik, 15 NY3d907, 908 [2010]). Concur—Friedman, J.P., Andrias, Saxe, Richter andGische, JJ.