Czereszko v. Procopio

• Decision Date: 28 April 2017
• Parties: Frank P. CZERESZKO, Plaintiff–Appellant–Respondent, v. Steve A. PROCOPIO, Jr., D.D.S., and Steve A. Procopio, Jr., D.D.S., P.C., Defendants–Respondents–Appellants.
• Court: New York Supreme Court — Appellate Division

149 A.D.3d 1531

53 N.Y.S.3d 770

Frank P. CZERESZKO, Plaintiff–Appellant–Respondent,

v.Steve A. PROCOPIO, Jr., D.D.S., and Steve A. Procopio, Jr., D.D.S., P.C., Defendants–Respondents–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

April 28, 2017.

Snyder Law Firm, PLLC, Syracuse (David B. Snyder of Counsel), for Plaintiff–Appellant–Respondent.

Napierski, Vandenburgh, Napierski & O'Connor, LLP, Albany (John W. Vandenburgh of Counsel), for Defendants–Respondents–Appellants.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM:

Plaintiff commenced this dental malpractice action seeking damages for injuries allegedly arising from, inter alia, the perforation of one of plaintiff's teeth and the failure of Steve A. Procopio, Jr., D.D.S. (defendant) to recognize and treat the perforation. Defendants moved for summary judgment dismissing the complaint, and plaintiff cross-moved pursuant to CPLR 3126 for sanctions for the alleged spoliation of evidence and for partial summary judgment. Plaintiff appeals and defendants cross-appeal from an order that granted defendants' motion in part and dismissed the complaint with respect to three specific claims underlying plaintiff's malpractice cause of action, and denied plaintiff's cross motion in its entirety. We affirm.

We note at the outset that plaintiff appealed from only that part of the order "awarding [defendants] partial summary judgment." Thus, we agree with defendants that plaintiff waived his right to appeal from that part of the order that denied his cross motion. " ‘An appeal from only part of an order constitutes a waiver of the right to appeal from the other parts of that order’ " ( Johnson v. Transportation Group, Inc., 27 A.D.3d 1135, 1135, 812 N.Y.S.2d 723 ; see Shumway v. Kelley, 60 A.D.3d 1457, 1459, 876 N.Y.S.2d 299 ).

We reject plaintiff's contention that Supreme Court erred in granting defendants' motion for summary judgment in part because plaintiff raised issues of fact with the submission of an expert affidavit in opposition. As the proponent of a motion for summary judgment in this dental malpractice action, defendants had the initial burden of establishing as a matter of law that there was no departure from accepted standards of care or that plaintiff was not injured thereby (see Terranova v. Finklea, 45 A.D.3d 572, 572, 845 N.Y.S.2d 389 ; Starr v. Rogers, 44 A.D.3d 646, 647–648, 843 N.Y.S.2d 371 ). Defendants did so by submitting plaintiff's medical records and defendant's own affidavit, which was " ‘detailed, specific and factual in nature’ " (Webb v. Scanlon, 133 A.D.3d 1385, 1386, 20 N.Y.S.3d 830 ). In his affidavit, defendant described his treatment of plaintiff's tooth and explained the absence of any deviations from accepted standards of care with respect to the manner in which he performed such treatment (see id.; Starr, 44 A.D.3d at 648, 843...