Pellew v. Goldstein

279 A.D.2d 512, 720 N.Y.S.2d 349, 2001 N.Y. App. Div. LEXIS 370

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 2001
• Status: Published

Opinion

In an action to recover damages for dental malpractice, the defendant Jeffrey Klein appeals from a judgment of the Supreme Court, Orange County (Sweeny, J.), entered November 23, 1999, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $33,000.

Ordered that the judgment is reversed, on the law, with costs, and the complaint is dismissed.

The plaintiff alleged that the defendant Jeffrey Klein committed dental malpractice in failing to take timely remedial measures after he lodged a root canal file in her mouth during the course of a dental procedure. At trial, the plaintiffs expert testified that the plaintiffs tooth was removed because of an infection. However, he failed to testify that the infection, which existed before the plaintiff visited Dr. Klein, became untreatable because of Dr. Klein’s alleged malpractice. Accordingly, there was no proof that any departure from accepted practice was a proximate cause of injury or damage (see, Lyons v McCauley, 252 AD2d 516). Therefore, the judgment in favor of the plaintiff must be reversed and the complaint dismissed (see, Falotico v Frankel, 232 AD2d 607). Bracken, Acting P. J., Altman, Goldstein and McGinity, JJ., concur.