Opinion
2016-11102 Index No. 6049/13
01-22-2020
Peter NELSON, Jr., respondent, v. Gary L. LIGHTER, etc., et al., appellants.
Hanlon & Veloce, Latham, N.Y. (Christine D'Addio Hanlon, Albany, of counsel), for appellant Gary L. Lighter. Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Timothy J. Lenane of counsel), for appellant Robert L. Rioseco. Murphy & Lambiase, Goshen, N.Y. (George A. Smith of counsel), for respondent.
Hanlon & Veloce, Latham, N.Y. (Christine D'Addio Hanlon, Albany, of counsel), for appellant Gary L. Lighter.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Timothy J. Lenane of counsel), for appellant Robert L. Rioseco.
Murphy & Lambiase, Goshen, N.Y. (George A. Smith of counsel), for respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JOSEPH J. MALTESE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, and those branches of the defendants' separate motions which were for summary judgment dismissing the causes of action alleging dental malpractice insofar as asserted against each of them are granted.
The plaintiff commenced this action, inter alia, to recover damages for dental malpractice against the defendants, Gary L. Lighter and Robert L. Rioseco. The defendants separately moved, among other things, for summary judgment dismissing the causes of action alleging dental malpractice insofar as asserted against each of them. In an order dated September 29, 2016, the Supreme Court, inter alia, denied those branches of the defendants' separate motions. The defendants separately appeal.
"In a dental malpractice action, the requisite elements of proof are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries" ( Kozlowski v. Oana, 102 A.D.3d 751, 752, 959 N.Y.S.2d 500 ; see Silveri v. Glaser, 166 A.D.3d 1044, 1045–1046, 87 N.Y.S.3d 254 ). A defendant moving for summary judgment 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 Kozlowski v. Oana, 102 A.D.3d at 752–53, 959 N.Y.S.2d 500 ). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" ( Zito v. Jastremski, 84 A.D.3d 1069, 1070, 925 N.Y.S.2d 91 [internal quotation marks omitted]; see Mathias v. Capuano, 153 A.D.3d 698, 60 N.Y.S.3d 327 ; Koi Hou Chan v. Yeung, 66 A.D.3d 642, 887 N.Y.S.2d 164 ).
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 Zito v. Jastremski, 84 A.D.3d at 1070–1071, 925 N.Y.S.2d 91 ; Stukas v. Streiter, 83 A.D.3d 18, 23–24, 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 ; Zito v. Jastremski, 84 A.D.3d at 1071, 925 N.Y.S.2d 91 ). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on ‘specifically cited evidence in the record’ " ( Tsitrin v. New York Community Hosp., 154 A.D.3d 994, 996, 62 N.Y.S.3d 506, quoting Roca v. Perel, 51 A.D.3d 757, 759, 859 N.Y.S.2d 203 ).
In opposing Rioseco's motion, the plaintiff's submissions included an affirmation of David W. Martin, a dentist licensed to practice dentistry in the State of New Jersey. In opposing Lighter's motion, the plaintiff's submissions included an affidavit from David W. Martin, the same New Jersey dentist who submitted the affirmation concerning Rioseco.
Lighter established, prima facie, his entitlement to judgment as a matter of law by submitting, inter alia, an affirmation from his dental expert demonstrating that he did not depart from good and accepted practice in his treatment of the plaintiff (see Garcia v. Richer, 132 A.D.3d 809, 810, 18 N.Y.S.3d 401 ). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of his expert, Martin, was speculative and conclusory (see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 754 N.Y.S.2d 195, 784 N.E.2d 68 ; Lowe v. Japal, 170 A.D.3d 701, 703, 95 N.Y.S.3d 363 ; Garcia v. Richer, 132 A.D.3d at 810, 18 N.Y.S.3d 401 ). In particular, Martin failed to articulate the applicable standard of care (see Webb v. Albany Med. Ctr., 151 A.D.3d 1435, 1437, 59 N.Y.S.3d 151 ; DeLaurentis v. Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d 774, 775, 985 N.Y.S.2d 709 ; Snyder v. Simon, 49 A.D.3d 954, 956, 853 N.Y.S.2d 195 ).
Likewise, Rioseco established, prima facie, his entitlement to judgment as a matter of law by submitting, inter alia, an affirmation from his dental expert demonstrating that he did not depart from good and accepted practice in his treatment of the plaintiff (see Garcia v. Richer, 132 A.D.3d at 810, 18 N.Y.S.3d 401 ). The plaintiff failed to raise a triable issue of fact in opposition to Rioseco's prima facie showing. In opposition, the plaintiff submitted, among other things, the unsworn affirmation of Martin, who was licensed to practice dentistry in the State of New Jersey. Consequently, the out-of-state dentist's statement did not constitute admissible evidence in that CPLR 2106 only authorizes attorneys, physicians, osteopaths, or dentists licensed in this state to utilize an affirmation in lieu of a sworn affidavit (see CPLR 2106[a] ; Lieber v. City of New York, 94 A.D.3d 715, 716, 941 N.Y.S.2d 249 ). In addition, Martin's submission failed to address specific assertions made by Rioseco's expert, and was otherwise conclusory (see Kerrins v. South Nassau Communities Hosp., 148 A.D.3d 795, 796, 48 N.Y.S.3d 734 ).
While an otherwise qualified expert physician, osteopath, or dentist, who is not licensed in this state, may submit a statement in support of or in opposition to a party's position in a case at bar, that statement must be in the form of a sworn affidavit. CPLR 2106(a), which permits such a statement to be in the form of an affirmation, only applies to attorneys, physicians, osteopaths, and dentists licensed to practice in the State of New York. The legislature amended CPLR 2106 effective January 1, 2015. As so amended, CPLR 2106(b) permits affirmations to be utilized by any person outside the United States, but not persons within the United States except as permitted under CPLR 2106(a). CPLR 2106(b) now provides: "The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form: I affirm this ... day of ..., ..., under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law."
Accordingly, the Supreme Court should have granted those branches of the defendants' separate motions which were for summary judgment dismissing the causes of action alleging dental malpractice insofar as asserted against each of them.
DILLON, J.P., LEVENTHAL, MALTESE and CHRISTOPHER, JJ., concur.