Blum v Yuabov
Decided on February 6, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-773 Q C.
Galina Blum, Appellant,
Elizabeth Yuabov, Respondent.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered January 4, 2005. The judgment, after a non-jury trial, dismissed the action.
Judgment affirmed without costs.
In this small claims action, plaintiff sought to recover damages for defendant dentist's alleged improper performance of a root canal procedure. Inasmuch as plaintiff failed to offer expert testimony showing that defendant's performance departed from the requisite standard of dental practice and that said departure was a proximate cause of her injuries, she did not establish by competent evidence that the root canal procedure performed by defendant was done improperly (see Davis v Levine, 4 Misc 3d 143[A], 2004 NY Slip Op 51101[U] [App Term, 2d & 11th Jud Dists]). Although plaintiff now contends that her action was not one for dental malpractice, but rather was based upon defendant's breach of contract, she failed to offer any proof at trial that defendant made "an express special promise to effect a cure or accomplish some definite result" (Clarke v Mikael, 238 AD2d 538, 538 ). Accordingly, the court below properly dismissed the action based upon plaintiff's failure to set forth a prima facie case.
We note that some matters in plaintiff's brief are dehors the record and may not be considered on appeal, since this court is limited to reviewing matters contained in the settled record (see Chimarios v Duhl, 152 AD2d 508 ).
Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: February 6, 2006