Gonzalez v. Blonda

Appellate Division of the Supreme Court of New York

Gonzalez v. Blonda

243 A.D.2d 365, 1997 N.Y. App. Div. LEXIS 10320

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 23, 1997

StatusPublished

This text of 243 A.D.2d 365 (Gonzalez v. Blonda) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gonzalez v. Blonda, 243 A.D.2d 365, 1997 N.Y. App. Div. LEXIS 10320 (N.Y. Ct. App. 1997).

Pincite

Opinion

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.

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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.

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Bluebook (online)

243 A.D.2d 365, 1997 N.Y. App. Div. LEXIS 10320, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-blonda-nyappdiv-1997.

Opinion

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