Alongi v. Sutter ( 2016 )

Alongi v Sutter (2016 NY Slip Op 03842)

Alongi v Sutter

2016 NY Slip Op 03842

Decided on May 18, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 18, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
THOMAS A. DICKERSON
FRANCESCA E. CONNOLLY, JJ.

2014-08463
(Index No. 32196/12)

[*1]Bianca Alongi, respondent,

v

Steven J. Sutter, etc., appellant, et al., defendant.

Catalano Gallardo & Petropoulos, LLP, Jericho, NY (Karen Corbett of counsel), for appellant.

Rich & Rich, P.C. (Joshua Annenberg, New York, NY, of counsel), for respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for dental malpractice, the defendant Steven J. Sutter appeals from so much of an order of the Supreme Court, Suffolk County (Asher, J.), dated July 23, 2014, as denied that branch of his motion which was for summary judgment dismissing the cause of action to recover damages for dental malpractice insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with 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" (McGuigan v Centereach Mgt. Group, Inc., 94 AD3d 955, 956; see Zito v Jastremski, 84 AD3d 1069, 1070). "A defendant moving for summary judgment 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" (Kozlowski v Oana, 102 AD3d 751, 752-753; see Sharp v Weber, 77 AD3d 812, 814).

Here, the defendant Steven J. Sutter met his burden of establishing, prima facie, his entitlement to judgment as a matter of law dismissing the cause of action to recover damages for dental malpractice insofar as asserted against him by showing that he did not depart from good and accepted dental practice (see Chan v Toothsavers Dental Care, Inc., 125 AD3d 712, 714). However, in opposition, the plaintiff raised a triable issue of fact as to whether Sutter departed from the applicable standard of care (see id.). Accordingly, the Supreme Court properly denied that branch of Sutter's motion which was for summary judgment dismissing the cause of action to recover damages for dental malpractice insofar as asserted against him.

MASTRO, J.P., CHAMBERS, DICKERSON and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court