Gonzalez v. Blonda

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered September 20, 1996, which, in an action for dental malpractice and breach of contract, denied defendant’s motion for summary judgment, unanimously modified, on the law, to dismiss the cause of action for breach of contract, and otherwise affirmed, without costs.

Issues of fact exist precluding summary judgment, including whether the bone spicule, infection and nerve damage of which plaintiff complains were risks of the extraction procedure defendant performed on plaintiff as to which advice should have been given and informed consent received, whether the spicule is indicative of malpractice, and whether the procedure warranted referral to a specialist. The breach of contract claim seeking return of the fee plaintiff paid to defendant should have been dismissed as redundant of the malpractice claim, there being neither allegation nor proof of an express special promise to effect a cure or accomplish some definite result (see, Winegrad v Jacobs, 171 AD2d 525, lv dismissed 78 NY2d 952). Concur—Sullivan, J. P., Milonas, Tom, Mazzarelli and Andrias, JJ.