Opinion
No. 570901/11.
2012-10-5
Gertrude Jean PIERRE, Plaintiff–Appellant, v. Dr. Imad AYOUBI, Defendant–Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Kibbie F. Payne, J.), entered June 8, 2010, which granted defendant's motion to dismiss the action at the close of plaintiff's case.
PRESENT: SHULMAN, J.P., HUNTER, JR., TORRES, JJ.
PER CURIAM.
Order (Kibbie F. Payne, J.), entered June 8, 2010, affirmed, with $10 costs.
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 McGuigan v. Centereach Mgt. Group, 94 AD3d 955 [2012] ). As with other species of medical malpractice cases, expert proof is required in a dental malpractice action to establish matters beyond the ordinary experience and knowledge of lay persons ( see McGinn v. Sellitti, 150 A.D.2d 967, 968 [1989];see generally Mosberg v. Elahi, 80 N.Y.2d 941, 942 [1992] ). Fatal to the dental malpractice claim advanced by plaintiff herein was her failure to present expert medical opinion evidence at trial-despite several prior admonitions by the court that such evidence was required-in support of her allegations that defendant departed from accepted dental procedure in “incompetent[ly]” installing a crown. Nor is a proper basis to lessen plaintiff's evidentiary burden found in her pro se status. “A litigant appearing pro se acquires no greater right than any other litigant and such appearance may not be used to deprive defendant[ ] of the same rights enjoyed by other defendants” (Banushi v. Lambrakos, 305 A.D.2d 524 [2003],lv denied1 NY3d 504 [2003], quoting Roundtree v. Singh, 143 A.D.2d 995 [1988] ).
Plaintiff's alternative argument, raised for the first time on appeal, that her claim in actuality sounds in breach of contract, is not properly considered. In any event, the argument lacks merit. “A breach of contract claim in relation to the rendition of medical or dental services by a physician or dentist will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or accomplish some definite result” (Clarke v. Mikail, 238 A.D.2d 538 [1997] ), a promise not shown to have been made by this defendant.