Opinion
2021–01094 Index No. 522851/16
12-20-2023
Andrew TURETSKY, respondent, v. Veselin SHUMANTOV, etc., et al., defendants, Hiroshi Kimura, etc., et al., appellants.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Ralph A. Catalano and Ian L. Glick of counsel), for appellants. Silver & Kelmachter, LLP (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis ], of counsel), for respondent.
Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Ralph A. Catalano and Ian L. Glick of counsel), for appellants.
Silver & Kelmachter, LLP (Hasapidis Law Offices, South Salem, NY [Annette G. Hasapidis ], of counsel), for respondent.
JOSEPH J. MALTESE, J.P., LINDA CHRISTOPHER, PAUL WOOTEN, LAURENCE L. LOVE, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for dental malpractice, the defendants Hiroshi Kimura and Hiroshi Kimura, DMD, PLLC, appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated January 11, 2021. The order, insofar as appealed from, denied those defendants’ motion for summary judgment dismissing the cause of action alleging dental malpractice insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action, inter alia, to recover damages for dental malpractice against, among others, the defendants Hiroshi Kimura and Hiroshi Kimura, DMD, PLLC (hereinafter together the defendants). The plaintiff alleged that the defendants were negligent in treating the slow healing of a block bone graft at the site of his upper left first molar during the period from March 2014 through July 2014, which caused him to develop trigeminal neuralgia. The defendants moved for summary judgment dismissing the cause of action alleging dental malpractice insofar as asserted against them, relying on, among other things, an expert affidavit from a periodontist who opined that the defendants did not deviate from the accepted standard of care. The Supreme Court, inter alia, denied the motion, and the defendants 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 Schmidt v. Bangiyev, 210 A.D.3d 924, 924, 178 N.Y.S.3d 212 ). "A defendant moving for summary judgment dismissing a cause of action alleging dental malpractice 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" ( Cujcuj v. Jayadevan, 218 A.D.3d 436, 437, 193 N.Y.S.3d 96, quoting Xiao Yan Ye v. Din Lam, 191 A.D.3d 827, 828, 141 N.Y.S.3d 125 ). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the ... bill of particulars" ( Koi Hou Chan v. Yeung, 66 A.D.3d 642, 643, 887 N.Y.S.2d 164 [internal quotation marks omitted]).
"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" ( Zito v. Jastremski, 84 A.D.3d 1069, 1070–1071, 925 N.Y.S.2d 91 ; see Schmidt v. Bangiyev, 210 A.D.3d at 925, 178 N.Y.S.3d 212 ). "Summary judgment is not appropriate in a dental malpractice action where ... the parties adduce conflicting medical expert opinions, since conflicting expert opinions raise credibility issues which are to be resolved by the factfinder" ( Many v. Lossef, 190 A.D.3d 721, 723, 137 N.Y.S.3d 128 ). "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" ( Schmidt v. Bangiyev, 210 A.D.3d at 925, 178 N.Y.S.3d 212 ).
Here, in opposition to the defendants’ prima facie showing that they did not depart from good and accepted dental practice (see Schmidt v. Bangiyev, 210 A.D.3d at 925, 178 N.Y.S.3d 212 ; Xiao Yan Ye v. Din Lam, 191 A.D.3d at 828, 141 N.Y.S.3d 125 ), the plaintiff raised a triable issue as to the element of departure by submitting, inter alia, the affidavit of his expert oral surgeon. The plaintiff's expert opined that the defendants deviated from accepted dental practice by, among other things, failing to recognize that the block bone graft had failed and advising the plaintiff to wait for the gum tissue to heal over a period of four months (see Many v. Lossef, 190 A.D.3d at 723, 137 N.Y.S.3d 128 ; Kozlowski v. Oana, 102 A.D.3d at 753, 959 N.Y.S.2d 500 ).
The defendants’ remaining contention is without merit.
Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the cause of action alleging dental malpractice insofar as asserted against them.
MALTESE, J.P., CHRISTOPHER, WOOTEN and LOVE, JJ., concur.