Opinion
CA 01-02356
May 3, 2002.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered September 28, 2001, which denied defendant's motion for summary judgment.
SMITH, MURPHY SCHOEPPERLE, LLP, BUFFALO (DENNIS P. MESCALL OF COUNSEL), FOR DEFENDANT-APPELLANT.
ZDARSKY, SAWICKI AGOSTINELLI, BUFFALO (GERALD T. WALSH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: GREEN, J.P., WISNER, SCUDDER, KEHOE, AND GORSKI, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Supreme Court properly denied defendant's motion for summary judgment dismissing the complaint in this dental malpractice action. Although defendant sustained his initial burden of demonstrating his entitlement to judgment as a matter of law on the issues of appropriate treatment and causation, plaintiffs raised triable questions of fact on those issues, thus warranting the denial of defendant's motion ( see Puntino v. Chin, 288 A.D.2d 202, 203; Heller v. Lublin, 281 A.D.2d 393; Boz v. Burger, 268 A.D.2d 453; Ballatore v. Verini, 255 A.D.2d 472).