Barone v Lapinel

[*1] Barone v Lapinel 2004 NY Slip Op 51246(U) Decided on October 20, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 2004
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: October 20, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 9th and 10th JUDICIAL DISTRICTS PRESENT : McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-127 N C

GIOVANNI BARONE, Appellant,

against

MARC LAPINEL, Respondent.

Appeal by plaintiff from a small claims judgment of the District Court, Nassau County (E. Prager, J.), entered July 22, 2003, which dismissed his action after trial.

Judgment unanimously modified by providing that, within 30 days of the date of the order hereon, defendant shall make the subject implant posts available to plaintiff, otherwise judgment reversed without costs and judgment directed to be entered in favor of plaintiff in the sum of $350.11; as so modified, affirmed without costs.

Plaintiff paid defendant to, among other things, purchase two implant posts which defendant, a dentist, would install in plaintiff's mouth as part of dental treatment rendered by defendant. Through no fault of defendant, plaintiff repeatedly developed infections in his mouth and was unable to have the implant posts installed. However, prior to plaintiff's termination of the course of treatment, defendant examined plaintiff during multiple office visits and consulted with plaintiff. Nevertheless, plaintiff commenced this action seeking a full refund. Although the record establishes that defendant was entitled to retain the money paid by plaintiff, in order to render substantial justice between the parties according to the rules and principles of substantive law (see UDCA 1807), the judgment is affirmed on condition that defendant make the implant posts, for which plaintiff paid, available to plaintiff as indicated above.
In the event that defendant fails to tender the implant posts, judgment is directed to be entered in favor of plaintiff in the sum of $350.11, the cost of the implant posts.
Decision Date: October 20, 2004