Singh v. Boodhoo

17 A.D.3d 345, 791 N.Y.S.2d 842, 2005 N.Y. App. Div. LEXIS 3488

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 4, 2005
• Status: Published

Opinion

In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated July 7, 2004, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff experienced persistent numbness in the lower left side of her face after the defendant extracted one of her teeth. She subsequently commenced this action to recover damages for dental malpractice alleging that the defendant injured the left inferior alveolar nerve in her jaw when he injected her with local anesthesia before extracting the tooth. When discovery was complete, the defendant moved for summary judgment dismissing the complaint. The Supreme Court denied the motion.

The affirmation of the defendant’s expert submitted in support of the motion established the defendant’s prima facie entitlement to summary judgment (see Stancavage v Mirman, 309 AD2d 918 [2003]). However, the affirmation of the plaintiffs expert submitted in opposition raised triable issues of fact (see Shields v Baktidy, 11 AD3d 671 [2004]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623 [2003]). Consequently, the Supreme Court properly denied the motion.

We have not considered the issue of informed consent because the plaintiff did not assert a cause of action alleging lack of informed consent, nor did the complaint include any such allegations.

The parties’ remaining contentions are without merit. Ritter, J.P., Luciano, Mastro and Skelos, JJ., concur.