Koss v Bach

Koss v Bach 2010 NY Slip Op 04838 [74 AD3d 472] June 8, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

Freya Koss et al., Respondents,
v
Hadley Bach, D.D.S., Appellant.

—[*1] Costello, Shea & Gaffney LLP, New York (Thomas A. Rhatigan of counsel), for appellant.

McCallion & Associates LLP, New York (Kenneth F. McCallion of counsel), for respondents.

Order, Supreme Court, Bronx County (Lucy Billings, J.), entered October 28, 2009, which denied defendant's motion for summary judgment, unanimously affirmed, without costs.

Plaintiffs' claim of dental malpractice is primarily predicated on the theory that defendant deviated from accepted standards of care by employing an amalgam that contained mercury, resulting in the patient suffering mercury poisoning, rather than using a premixed, precapsulated amalgam filling. Even assuming defendant met his initial burden of establishing, prima facie, that he did not deviate from accepted standards of dental practice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and that any purported departures on his part were not a cause of the patient's injuries, defendant has not made a direct evidentiary refutation of plaintiffs' specific allegations (see Roques v Noble, 73 AD3d 204 [2010]). The submissions by plaintiffs' three expert witnesses sufficiently raise a triable issue of fact as to whether defendant departed from the standards of accepted dental practice, and whether such deviation was a proximate cause of the patient's injuries (see Erdogan v Toothsavers Dental Servs., P.C., 57 AD3d 314 [2008]). Rather than offering simply conclusory, unsupported views, those experts relied on such objective factors as the failure to use premixed dental amalgams, and the high levels of gaseous mercury that the vapor testing found in plaintiff's mouth (see Ashton v D.O.C.S. Continuum Med. Group, 68 AD3d 613 [2009]).

We have considered defendant's argument for entitlement to a hearing pursuant to Frye v [*2]United States (293 F 1013 [DC Cir 1923]) and his challenge to the cause of action for lack of informed consent, and find them both without merit. Concur—Gonzalez, P.J., Sweeny, Richter, Abdus-Salaam and RomÁn, JJ.