Opinion
2007-1348 S C.
Decided on November 26, 2008.
Appeal from a judgment of the District Court of Suffolk County, Sixth District (Gigi A. Spelman, J.), entered May 29, 2007. The judgment, after a nonjury trial, dismissed the action.
Judgment affirmed without costs.
PRESENT: RUDOLPH, P.J., McCABE and MOLIA, JJ.
In this small claims action, plaintiff sought to recover damages resulting from defendants' allegedly improper installation of dental bridgework. Plaintiff claimed that the bridge installed in his mouth by Dr. Fox loosened after a short period of time, and was ultimately replaced by another dentist, for which plaintiff sought reimbursement. Plaintiff also sought to recover the sum paid to another dentist for a filling which, he claimed, was necessitated by Dr. Fox's improper drilling. Dr. Fox testified that plaintiff was not charged for the bridgework or its installation, and that his dental treatment was not a factor in plaintiff's subsequent need for the replacement bridge or for the filling.
Since plaintiff failed to establish, through expert testimony, that defendants departed from the requisite standard of dental practice during plaintiff's dental treatment, and that any such departure was a substantial factor in bringing about his injury, he did not establish that defendants were liable for dental malpractice ( see Awkar v Zegarelli , 15 Misc 3d 137[A], 2007 NY Slip Op 50891[U] [App Term, 9th 10th Jud Dists 2007]; Davis v Levine , 4 Misc 3d 143 [A], 2004 NY Slip Op 51101[U] [App Term, 2d 11th Jud Dists 2004]). This requirement may not be dispensed with merely because plaintiff chose to pursue his claim in the Small Claims Part of the court ( see Crennan v Omnicare Dental , 9 Misc 3d 127 [A], 2005 NY Slip Op 51503[U] [App Term, 1st Dept 2005]). Moreover, plaintiff's testimony that Dr. Fox assured him that his bridge would stay in permanently, without more, did not establish that defendants made "an express special promise to effect a cure or accomplish some definite result" ( Clarke v Mikail, 238 AD2d 538, 538), so as to render defendants liable for breach of contract.
We note that certain documents included in plaintiff's brief are dehors the record and may not be considered on appeal, since this court is limited to reviewing matters contained in the settled record ( see Chimarios v Duhl, 152 AD2d 508).
Contrary to plaintiff's contentions, the court below did not err in dismissing the action, and substantial justice was done between the parties according to the rules and principles of substantive law (UDCA 1804, 1807). Accordingly, the judgment is affirmed.
Rudolph, P.J., and McCabe, J., concur.
Molia, J., taking no part.