Opinion
2002-436 RO C.
Decided December 22, 2003.
Appeal by defendant from a small claims judgment of the Justice Court, Village of Nyack, County of Rockland (R. Knoebel, J.), entered on March 2, 2000, awarding plaintiff the sum of $1,600.
Judgment reversed without costs and action dismissed.
PRESENT: DOYLE, P.J., RUDOLPH and SKELOS, JJ.
In this small claims action based upon dental malpractice, plaintiff failed to establish by competent evidence that the root canal procedure performed by defendant was done negligently. The court's decision as to liability rested entirely on hearsay evidence and, therefore, was not in accordance with the rules and principles of substantive law ( see Levins v. Bucholtz, 2 AD2d 351; see also, Ross v. Staten Island University Dental Clinic, NYLJ, June 15, 2001 [App Term, 2d 11th Jud Dists]). Furthermore, there was insufficient evidence to support plaintiffs claim for damages in that plaintiff submitted neither an itemized bill marked paid nor two itemized estimates as to the value of the corrective dental work performed (see UJCA 1804).
Doyle, P.J., and Skelos, J., concur.
Rudolph, J., dissents in a separate memorandum.
In my view, defendant's liability was not based solely upon hearsay documents, but rather upon the trial testimony as well. Plaintiff testified that he had persistent pain following the root canal procedure performed by defendant, and that he had to have the procedure redone two months later by an endodontist. Defendant acknowledged that plaintiff suffered some discomfort after treatment and that plaintiff was still in pain three weeks after the procedure had been done, but stated that he "had months to let it settle down." Common sense dictates that a patient in pain not be required to wait for months to see if the pain "settles down." It is my opinion that the letters of Dr. Marciano and Dr. Loo, which were submitted in support of plaintiffs case on liability, when considered in conjunction with the trial testimony, constituted sufficient evidence to warrant the trial court's finding that defendant failed to satisfactorily perform the root canal procedure which was the subject of plaintiffs claim.
With respect to plaintiffs claim for damages, I would view the letter of Dr. Marciano as "[am itemized bill or invoice, receipted or marked paid" (see UJCA 1804), in order to establish the value of the corrective root canal procedure performed upon plaintiff.