Alba v Birnbaum

[*1] Alba v Birnbaum 2004 NY Slip Op 50224(U) Decided on March 31, 2004 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 31, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT:DECIDED March 31, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : ARONIN, J.P., GOLIA and RIOS, JJ.
NO. 2003-1060 K C

GABRIELLA ALBA, Respondent,

against

MARK B. BIRNBAUM, D.D.S. AND WILLIAM GELFMAN, D.D.S., Appellants, -and- MICHAEL BECKER, D.D.S., Defendant.

Appeal by defendants Mark B. Birnbaum, D.D.S. and William Gelfman, D.D.S. from an order of the Civil Court, Kings County (L. Baily-Schiffman, J.), entered May 20, 2003, which denied their motion for summary judgment dismissing the complaint.

Order unanimously reversed without costs and motion by defendants Mark B. Birnbaum, D.D.S. and William Gelfman, D.D.S. for summary judgment dismissing the complaint as against them granted.

In this action to recover damages for dental malpractice and lack of informed consent, defendants Mark B. Birnbaum, D.D.S. and William Gelfman, D.D.S. moved for summary judgment. Among other things, they relied upon expert opinions rendered in an affirmation by a board certified dentist and an affirmed medical report prepared by a neurologist. Inasmuch as both experts affirmed under penalty of perjury, their expert opinions constituted evidence in admissible form and were entitled to consideration (see CPLR 2106; Lubrano v Papandreou, 262 [*2]AD2d 457 [1999]; Mero v Bauer, 260 AD2d 356 [1999]).

Although the expert opinions submitted by movants declared that the dental care at issue did not depart from the requisite standard of care and that the dental care was not the proximate cause of the pain which the plaintiff continues to suffer, plaintiff did not submit an affidavit from an expert contradicting said expert opinions. As a result, plaintiff failed to raise a material issue of fact with respect to her cause of action for dental malpractice (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Stancavage v Mirman, 309 AD2d 918 [2003]; Mendez v City of New York, 295 AD2d 487 [2002]).

In support of the branch of their motion to dismiss the cause of action alleging lack of informed consent, the expert opinions submitted by defendants Birnbaum and Gelfman stated that the dental treatment at issue was not the proximate cause of plaintiff's injuries and the risk of the injury which plaintiff claims to have suffered was too remote to warrant disclosure. As a result, the burden shifted to plaintiff to offer an expert opinion stating that the possibility of the injury should have been disclosed because the risk was not remote, that "a reasonably prudent person in the [plaintiff's position] would not have undergone the treatment or diagnosis if [s]he had been fully informed and that the lack of informed consent is a proximate cause of the injury or condition for which recovery is sought" (Public Health Law § 2805-d [3]; see Stancavage, 309 AD2d at 919; Geltzer v Leventhal, 287 AD2d 435, 436-437 [2001]). Since plaintiff did not offer any expert opinion, defendants Birnbaum and Gelfman were entitled to summary judgment dismissing the cause of action which sought to recover damages for lack of informed consent (Public Health Law § 2805-d; see Alvarez, 68 NY2d at 320; Stancavage, 309 AD2d at 919; Burns v Biondo, 300 AD2d 426 [2002]; Elkrichi v Flushing Hosp. Med. Ctr., 297 AD2d 276 [2002]; Geltzer, 287 AD2d at 436-437; Dunlop v Sivaraman, 272 AD2d 570, 570-571 [2000]; Innucci v Bauersachs, 201 AD2d 460 [1994]; cf. Polichetti v Cohen, 268 AD2d 417 [2000]).

Accordingly, the motion by defendants Birnbaum and Gelfman for summary judgment dismissing the complaint as against them should have been granted. [*3]
Decision Date: March 31, 2004