Zito v. Jastremski

• Decision Date: 17 May 2011
• Citation: 84 A.D.3d 1069,925 N.Y.S.2d 91,2011 N.Y. Slip Op. 04240
• Parties: Denice LaBarca ZITO, appellant,v.Edward JASTREMSKI, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1069

925 N.Y.S.2d 91

2011 N.Y. Slip Op. 04240

Denice LaBarca ZITO, appellant,

v.Edward JASTREMSKI, etc., et al., respondents.

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

May 17, 2011.

Lutfy & Santora, Staten Island, N.Y. (James L. Lutfy of counsel), for appellant.Kaufman Borgeest & Ryan, LLP, Garden City, N.Y. (Joseph D. Furlong of counsel), for respondents Edward Jastremski and Edward Jastremski, D.D.S., P.C.Charles J. Siegel, New York, N.Y. (Christopher A. South of counsel), for respondent Robert Martini.JOSEPH COVELLO, J.P., RANDALL T. ENG, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Richmond County (Straniere, J.), dated October 20, 2009, which granted the motion of the defendants Edward Jastremski and Edward Jastremski, D.D.S., P.C., and the separate motion of the defendant Robert Martini for summary judgment dismissing the complaint insofar as asserted against each of them, (2) a judgment of the same court dated December 2, 2009, which, upon the order dated October 20, 2009, is in favor of the defendants and against her dismissing the complaint, and (3), as limited by her brief, from so much of an order of the same court dated May 27, 2010, as, in effect, denied that branch of her motion which was for leave to renew her opposition to the defendants' respective motions for summary judgment.

ORDERED that the appeal from the order dated October 20, 2009, is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the order dated May 27, 2010, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries ( see Sharp v. Weber, 77 A.D.3d 812, 813, 909 N.Y.S.2d 152; Koi Hou Chan v. Yeung, 66 A.D.3d 642, 887 N.Y.S.2d 164; Cohen v. Kalman, 54 A.D.3d 307, 863 N.Y.S.2d 63). Consequently, on a motion for summary judgment, a defendant has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiff's injuries ( see Myers v. Ferrara, 56 A.D.3d 78, 83, 864 N.Y.S.2d 517; Larsen v. Loychusuk, 55 A.D.3d 560, 561, 866 N.Y.S.2d 217; Terranova v. Finklea, 45 A.D.3d 572, 845 N.Y.S.2d 389). “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).

To defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing ( see Stukas v. Streiter, 83 A.D.3d 18, 21–26, 918 N.Y.S.2d 176). However, mere conclusory allegations of malpractice, unsupported by competent evidence tending to establish the elements of the claim at issue, are insufficient to defeat summary judgment ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572; Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121; Gargiulo v. Geiss, 40 A.D.3d 811, 812, 836 N.Y.S.2d 276).

Here, the defendants met their initial burden of establishing their entitlement to judgment as a matter of law by, among other things, submitting an affidavit of the defendant Edward Jastremski, which detailed the treatment of the plaintiff and concluded that there was no departure from accepted standards of dental practice, and that, in any event, any alleged departure was not a proximate cause of the plaintiff's injuries. In opposition, the affidavit of the plaintiff's expert contained only conclusory opinions regarding the defendants' alleged negligence, which were insufficient to raise a triable issue of fact ( see Alvarez v....