LaVecchia v. Bilello

• Decision Date: 10 August 2010
• Parties: Tracy Ann LaVECCHIA, respondent, v. Rita Marie BILELLO, etc., defendant, Raphaelson Dental Associates, appellant.
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 326
76 A.D.3d 548

Tracy Ann LaVECCHIA, respondent,
v.
Rita Marie BILELLO, etc., defendant,
Raphaelson Dental Associates, appellant.

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

Aug. 10, 2010.

906 N.Y.S.2d 326

Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellant.

Gary Greenwald, Chester, N.Y. (David A. Brodsky, Mark Leffler, and Jamie Greenwald of counsel), for respondent.

PETER B. SKELOS, J.P., FRED T. SANTUCCI, THOMAS A. DICKERSON, and JOHN M. LEVENTHAL, JJ.

76 A.D.3d 548

In an action to recover damages for dental malpractice, the defendant Raphaelson Dental Associates appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated May 7, 2009, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury ( see Koi Hou Chan v. Yeung, 66 A.D.3d 642, 887 N.Y.S.2d 164; Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389; Clarke v. Limone, 40 A.D.3d 571, 835 N.Y.S.2d 381). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby ( see

906 N.Y.S.2d 327

Koi Hou Chan v. Yeung, 66 A.D.3d at 642, 887 N.Y.S.2d 164; Terranova v. Finklea, 45 A.D.3d at 572, 845 N.Y.S.2d 389; Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" ( Koi Hou Chan v. Yeung, 66 A.D.3d at 643, 887 N.Y.S.2d 164; see Ward v. Engel, 33 A.D.3d 790, 791, 822 N.Y.S.2d 608; Johnson v. Ladin, 18 A.D.3d 439, 794 N.Y.S.2d 441).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion ( see Farmer v. City of New York, 25 A.D.3d 649, 650, 810 N.Y.S.2d 90). Moreover, the...