Posokhov v. Oselkin

44 A.D.3d 921, 843 N.Y.S.2d 511

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 2007
• Status: Published

Opinion

In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 8, 2006, which denied his renewed motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s renewed motion for summary judgment dismissing the complaint is granted.

“The requisite elements of proof in a medical or dental malpractice action are deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage” (Calabro v Hescheles, 22 AD3d 622 [2005]). The defendant’s submissions on his motion for summary judgment, including the affirmation of his dental expert, established a prima facie case that his treatment of the plaintiff was not negligent or a proximate cause of the plaintiffs alleged injuries, thereby shifting to the plaintiff the obligation to show by sufficient evidentiary proof the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The conclusory and unsupported allegations of dental malpractice contained in the affirmation prepared by the plaintiffs expert, submitted in opposition, were insufficient to defeat the defendant’s renewed motion (see Alvarez v Prospect Hosp., 68 NY2d at 325). Schmidt, J.P., Fisher, Lifson and Carni, JJ., concur.