Beatrice v Biondo

Annotate this Case

Download PDF

Beatrice v Biondo 2012 NY Slip Op 30423(U) February 24, 2012 Supreme Court, New York County Docket Number: 106235/09 Judge: Joan B. Lobis Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ANNED ON 212712012 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK CmJ PRESENT: COUNTY PART L Justice FL * -v- lZu lUm ' 1 "b.(Ioy INDW NO. wJ a' rciB' MOTIONDATE MOTION 880. NO. I 3 MOTION CAl. NO. were read on this motion tolfor The following papers, numbered 1 to Affidavit8 - Exhlbits ... Replying Affidavit6 Cross-Motion: 0 Yes No Upon the foregolng papera, It IB ordered that this motion 3ated: =heck one: 0 FINAL DISPOSITION Check if appropriate: DO NOT POST n SUBMIT ORDER/ JUDE. a REFERENCE 0 SETTLE ORDER/ JUDO. [* 2] Plaintiff, -against- RONALD BIONDO, D.D.S., Index No. 106235/09 Third-party Plaintiff, -againstTHEODORE AARONSON, D.D.S., By this motion, third-party defendant Theodore Aaronson, D.D.S., moves, by order to show c a w , for an order granting him summary judgment, pursuant to C.P.L.R.Rule 3212, on the basis that there is no evidence that he departed horn accepted standards of care and that there is no evidence that the matmtnt he rendered was the proximate cause of any injury sustained by plahtiff Nanette Beatrice. Defendant and third-party plaintiff Ronald Biondo, D.D.S., opposes the motion, alleging that the work done by Dr. Aaronson was improper and a proximate cause of plaintiffs injuries. Plaintiff has taken no position on Dr. Aaronson's motion. Plaintiff began consulting with Dr. Aaronson on December 4,2006, for problemsshe had with ill-fitting upper denturcs. She was dissatisfied with her removable denture, so D . r Aaronson suggested that she consider dental implants. She consultedwith dentists at the New York [* 3] University Dental Clinic i January 2007. Dissatisfied with the course of treatment suggested there, n she sought out other dentists. Through an organization called Care Credit, a financing company that provides health care loans, she obtained the name of Dr. Biondo. She first saw h m on February I, i 2007, and agreed to have him place four implants in her mouth which would enable her to have nonremovable dentures. Early in the treatment, Dr. Biondo questioned whether plaintiff could have the necessary implants done without a bone graft because of significant bone loss in her upper jaw. Plaintiff opposed the procedure involving a bone graft, so D .Biondo devised a plan for four (4) r implants at the locations of teeth numbers 5,6, I 1, and 12, but ultimately placed the implants at teeth numbers 5 , 7 , 9 , and 10' due to the quality and quantity of her upper maxilla, without utilizing a graft. Dr. Biondo performed the surgery on March 15,2007, and plaintiff w s to follow up wt him. a ih As the work was being done by D .Biondo, plaintiff w s also treating with D . r a r Aaronson. Plaintiffs removable dentures needed to be adjusted for fit while Dr. Biondo's work was ongoing. While the implants were healing, D .Aaronson performed a soft reline adjustment, by r putting silicone padding inside plaintiffs denture, so that plaintiff would be morc comfortable. Once the implants were established, Dr. Aaronson would do the restorative dentistry, creating a new denture that would attach to the implants. After several follow-up appointments in April, May,and June 2007, the implant at tooth number 5 failed and D .Biondo removed it on July 5,2007. On August 20,2007, a fractured r ' At times, the record refers to implants at different teeth locations. The numbers assigned to the implants arc not always consistent. There is no significancc to the different teeth numberings for the purposes of this motion. -2- [* 4] screw was replaced and a healing abutment at tooth number 8 was also replaced. During visits in October and November 2007, plaintiff seemed to be progressing without incident. On December 17,2007, however, plaintiff returned to Dr. Biondo wt a fractured healing abutment. On plaintiffs ih next visit on January 2,2008, fractutcdthreadswere removed and the healing abutment was replaced at tooth number 9 and an additional implant was done at the location of tooth number 5. On a return visit on January 28,2008, another healing abutment, probably at tooth number 10, w s missing, and a new cover screws were inserted. Visits on February 13 and M r h 11 were unremarkable. On May ac 1,2008, a healing abutment was placed at the location of tooth number 5. In June, plaintiff was scheduled for a follow-up for a new healing abutment. She w s seen twice in July, but it is not clear a from the record whether a new abutment w s inserted. She had her last appointment With D . a r Biando on July 19,2008, and D .Aaronson began fashioning the new prosthetic. r From the period after the implants in March 2007, Ms.Beatrice was seen by Dr. Aaronson for adjustmentsof her old upper dentureapproxlmatelyfifteen times. Once D .Amnson r started the new restorative work, impressions were taken and fittinp were done using three of the four implants to support the new denture. Dr. Amonson was unable to use the implant at tooth number 8 because of thc angle. On October 2,2008, a new final upper denture was placed. By October 2 1,2008, plaintiff returned and advised Dr. Aaronson that the implant at tooth number 5 had failed. Because of bleeding at teeth numbers 9 and 10, Dr. Aaronson referred plaintiff to Dr. Maurice Edwards, a periodontist, on or about October 27,2008. In a referral letter back to Dr. Aaronson, Dr. Edwards indicated the possible loss of the implants and the continuationof bone loss associated with two implant fixtures. Ms.Beatrice s next visit to Dr.Aaronson was on M r h 2, ac -3- [* 5] 2009, because her upper denture had fractured. By this time, only two implants supported her denture. On June 9,2009, a crack in the upper denture was repaired. The denture was returned to the lab on August 3,2009, and placed back in plaintiffs mouth on August 12,2009. Adjustments were made on August 28,2009. On October 12,2009, Dr. Aaronson noted that plaintiff was a grindci and that she kept her upper denture in her mouth overnight. On November 19,2009, Dr. Aaronson noted that the implant at tooth number 9 wm falling. Plaintiff wai referred to Dr. Clifford Salin for extraction of the implant. At a visit on February 8,2010, plaintiff advised D .Aaronsbn r that another implant had been removed. By a visit on March 24,2010, the upper denture was supported by only one implant. On M y 25,201 0, plaintiff complained that the implant at tooth a number 10 was loose and she called Dr. Aaronson on June 1,2010, to inform h m that the fourth i implant had fallen out. In support of D .Aaronson s motion, he offers the affidavit of Stewart K.h o w , r D.D.S., M.D., F.A.C.S., a diplomat of the American B o d of Oral and Maxillofacial Surgery. Having reviewed the relevant medical and dental records, x-rays, pleadings, and party depositions, he opines that the implants failed because of the poor quality of plaintiffs bone. In support, he points out that the first implant in tooth number 5 had failed before Dr. Aaronson had begun his restoration work. Moreover, Dr. Biondo had identified plaintiffs bone quality as an issue and he advised plaintiff that the replacement could also fail due to poor quality of the bone. D .b o w r asserts that the failure of the implants was not caused by anything done by Dr. Aaronson. While not conceding that Dr. Aaronson has made a a showing and continuing his objectionto the timeliness of thismotion,in opposition, D . r Biondo offers the opinion -4- [* 6] of his expert (name redacted), a board certified oral and maxillofacial surgeon. D .Biondo s expert r also revicwcd the relevant dental records and party depositions. It is D .Biondo s expert s opinion r a that the concurrent and subsequent restorative care by Dr. Aaronson w s designed and executed in breach ofacccpted standards of care, and that those breaches proximately caused plaintiffs injuries. The expert opinas that the attachment between the upper dsnture and the implants was improperly designed, placing undue stress on the implants and causing them to fail. The expert further opines that Dr. Biondo s claim that D .Aaronson s care deviated h n the standard of care and proximately r cawed injury to plaintiff is supported by plaintiff s repeated removal of the dentures, the number of adjustmentsdone shortly after the implantation, and the continuingneed for adjustments. The expert opines that Dr. Aaronson also used an improper attachment in fashioning the prosthetic. For all r those reasons, Dr. Biondo argues that D .Aaronson should not be granted summary judgment. In reply, Dr.Aaronson argues that Dr. Biondo s expert has failed to defeat his motion for summary judgment. H points out that Dr. Biondo s expert never saw Ms.Beatrice. Further, he e argues that the expert s opinions are mere conclusions unsupported by authority or evidence. Dr. Aaronson argues that the lack of merit to the claims against him is underscored by D .Biondo s own r deposition testimony, in which he stated that causation was impossible to discern. Therefore, Dr. Aaronson argues that D .Biondo s expert s opinions are speculative and insufficient to create a r factual dispute for trial. As established by the Court of Appeals i n m z v. Pro324 (1986) and Wi- 68 N.Y.2d 320, v. Ncw Yoxk Univ, Med, C b 64 N.Y.2d 851,853 (1985), and as has -5- [* 7] recently been reiterated by the First Department, it is a cornerstoneofNew Yorkjurisprudence that the proponent of a motion for summary judgment must demonstrate that there arc no material issues of fact in dispute, and that b e or she] is entitled to judgment as a matter of law. Q&ov v, Rozbnrch.-A.D.3d , 2012 N.Y.Slip Op. 22, 9-10 (1st Dcp t January 3, 2012), & W i n e d 64N.Y.2d at 853. In a malpractice case, to establish entitlement to summary judgment, a physician m s demonstrate that he did not depart from accepted standardsofpractice or that, even ut if he did, he did not proximately cause injury to the patient. L 70 A.D.3d 654 (2d Dep t 2010). The failure to meet this burden mandates the denial of the application, regardless of the sufficiency of the opposing papers. N.Y.2d at 853. However, once a movant mccts this burden, it is incumbent upon the opposing party to proffer evidence sufficient to establish the existence of a material issue of fact requiring a trial. Qstrov, at ** 10, &, 4 l v ~ & 68 N.Y.2d at 324. Summaryjudgmcnt is a drasticremedy, which should not be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable, since it serves to deprive a party of his day in court. * w o n v, -can , 125 A.D.2d 65,74 (1st Dep t 1987) (internal citations omitted). H r ,J . Lazow opines that the cause of plaintiffs injuries was the failure of the ee h implants due solely to the condition of her maxillary. The record has repeated mention of the problems wt the quality and quantity of her bone. This opinion is sufficient to make out a prima ih & claim of entitlement to summary Judgment. However, D .Biondo s expert has expressed r sufficient detail regarding the number of adjustmentsand the history of failure of the new prosthetic to raise factual issues that are the province of a jury. It is wall settled that a battle of experts, such -6- . . [* 8] as is prescnlcd here. raises issues h a t must be rcsolvcd b1.n fact findcr and which prcclude summ:iry judgmcnt. Frve F , Mnnrcfiore blcd, Chrl, 70 A,D.3d 15, 25 (1st Dcp t 2009); Unmett v. Fnshakiii. 85 A.II.3d 832 (2d Dcp t 201 1); Barbutr, v, Winthron Un iv. Iiosp., 305 A.D.2d 623, 624 (26 Dep t 2003). Accordingly, it is Iicreby ORDERED that dufcndanl Theodore Aaronson, D.D.S. s motion for summary judgmcnt is denied i n its entirety; and it is furtlicr ORDERED that thc parties nrc dircckd to appear for a pretrial confcrcnce on bvlarcli 20, 201 3. at 9:30 u.m. ENTER: JOAN 8, LOBIS, .J.S.C. -7-

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.