Judges

Attorneys and Parties

Brief Summary

Background

The plaintiff received dental treatment from Jack Hirsch from 2003 through August 2012, and later treated primarily with Anthony T. Vuong between 2013 and 2017. On August 27, 2014, the plaintiff went to Alan B. Singer's office for one dental visit; Singer did not personally examine the plaintiff or take radiographic imaging. In June 2017, after presenting with jaw pain and swelling, the plaintiff was diagnosed with an ameloblastoma, a benign jaw tumor, and underwent surgical removal and jaw reconstruction. The plaintiff commenced this action on October 15, 2017, asserting, among other things, dental malpractice.

Lower Court Decision

After discovery, the Hirsch defendants moved for summary judgment and also sought dismissal of pre-October 15, 2007 claims as untimely. Before decision, they amended their motion and expressly limited it to statute of limitations relief, withdrawing the remainder. Singer separately moved for summary judgment dismissing the malpractice claim against him. The Supreme Court treated the Hirsch motions together, held that claims based on acts after October 14, 2007 were timely, but nonetheless granted summary judgment dismissing the post-October 14, 2007 malpractice claim against the Hirsch defendants on the merits. The court also granted Singer summary judgment dismissing the malpractice claim against him. Judgments were then entered in favor of those defendants.

Appellate Division Reversal

The Appellate Division first dismissed the direct appeal from the order because the right to appeal from the order ended upon entry of the judgments, and reviewed the issues on the appeals from the judgments under CPLR 5501(a)(1). It reversed the November 3, 2020 judgment insofar as appealed from because the Hirsch defendants had specifically withdrawn the summary judgment branch that the trial court granted; that branch was deemed withdrawn and the post-October 14, 2007 malpractice claim against them was reinstated. It also reversed the December 3, 2020 judgment insofar as appealed from because Singer did not meet his initial burden on summary judgment. The court held that a defendant in a dental malpractice case must show no departure from accepted practice or no proximate cause and must address the specific allegations in the bill of particulars. Singer's expert submission was insufficient because it relied in part on American Dental Association guidelines that were not attached, and the opinion was conclusory regarding detectability of the ameloblastoma and whether Singer departed from accepted practice. Because Singer failed to make a prima facie showing, his motion should have been denied regardless of the plaintiff's opposition.

Legal Significance

This decision underscores two recurring New York appellate principles: first, a court cannot grant relief that a movant has withdrawn before decision; second, in dental malpractice summary judgment practice, the moving defendant's expert proof must be specific, nonconclusory, and must directly address each malpractice allegation in the bill of particulars. Reliance on outside professional guidelines without submitting them to the court may render the expert showing insufficient.