Gourzis v Stolzenberg
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Gourzis v Stolzenberg 2012 NY Slip Op 31265(U) May 11, 2012 Sup Ct, New York County Docket Number: 112854/09 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] SCANNED ON 511512012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART 6 PRESENT: JQAN B LO BIS Justlce INDEX NO \ \%%4 1, 7 MOTION DATE&] MOTION SEQ. NO. The following papers, numbered I to m% 2 - were read on thle rnotlon to/ 3, - Notlce of Motion / Order to Show Cause - Affidavit8 Exhlblts Answsrlng Affidavits - Exhibits No(e). Replying Affldavits '57 =,e / Upon the foregolng papers, it is ordered that thls motlon i8 THIS MOTION IS DECIDED .IN ACCORRANCE WITH THE ACCOMPANYING MEMORANDUM DECISION I I I % ~ @ f i ~ ~ s v I e EZ :E Dated: ,J.S.C. 1. CHECK ONE: ....................................................... 0 CASE DISPOSED 0 OTHER 0 DENIED 0 GRANTED IN PART 2. CHECK AS APPROPRIATE: ............. MOTION IS GRANTED 0 SUBMIT ORDER 3. CHECK IF APPROPRIATE: ................................. SElTLE ORDER 0 DO NOT POST 0 FIDUCIARY APPOINTMENT REFERENCE [* 2] Plaintiff, P and OrdeE -against Index No. 1 12854/09 SOL S. STOLZENBERG, D.M.D., P.C. d&/a TOOTHSAVERS DENTAL CENTER, Third -Party Plaintiff, Index No. 590819/10 -against- Third-party defendant Dr. Ahmad Chaudhry s/h/a Dr. Ahmad Chaudhuty moves, by order to show cause, under C.P.L.R. Rule 3212, for an order granting him summary judgment and dismissing the causes of action brought against him by third-party plaintiff Sol S. Stolzenberg, D.M.D., P.C. d/b/a Toothsavers s/h/a Sol S. Stolzenberg, D.M.D,, P.C. d/b/a Toothsavers Dental Center ( Toothsavers ). Defendmuthird-party plaintiff Toothsavers cross-moves for an order granting it partial summary judgment and dismissing all claims of vicarious liability for Dr. Chaudhry s acts, omissions, care, and treatment. - [* 3] Plaintiff Miriam H. Gourzis commenced a dental malpractice action against Toothsavers for treatment rendered by various dentists between June 2005 and December 2008. Dr. Chaudhry, an oral and maxillofacial surgeon, rendered certain treatment to plaintiff. Toothsavers commenced .a third-party action against Dr. Chaudhry, alleging, inter alia, that Dr. Chaudhry negligently performed bilateral sinus lifts; negligently performed dental procedures; failed to timely and accurately diagnose complications; and failed to obtain plaintiffs informed consent. Toothsavers also alleges that Dr. Chaudhry had an oral agreement with Toothsavers by which he agreed to indemnify and hold harmless Toothsavers. Dr. Chaudhry s work on Ms. Gourzis teeth consisted of placing a final abutment of a pre-existing implant at tooth number 12; placing an implant at tooth number 11; and performing sinus lifts on the upper left and upper right sides in January 2007. When Ms. Gourzis returned to ! Dr. Chaudhry on August 6,2007, he anticipated that he could place implants in the upper left portion of plaintiff s mouth; however, when he reopened that area, he realized that the upper left sinus lift .-, had failed and that most of the added bone had been absorbed by the body. After realizing that the sinus lift had failed, Dr. Chaudhry proceeded no further, informed plaintiff that the sinus lift had failed, and advised plaintiffthat she would need a further procedure should she wish to proceed with implants. Dr. Chaudhry performed no work on plaintiff after August 6 , 2007. Dr. Chaudhry maintains that his work on plaintiff did not depart from good and accepted dental practice. He submits a detailed affirmation from David A. Behrman, D.M.D., who sets forth that he is a dentist duly licensed to practice in New York. Based on his review of 4 -2- [* 4] .- plaintiffs dental records, the pleadings in the case, and the parties deposition transcripts, Dr. Behrman opines that Dr. Chaudhry did not depart from good and accepted standards of practice, nor did he fail to obtain plaintiff s ipformed consent. Dr. Chaudhxy s motion is sufficient to make out a Prima facle case of entitlement to summaryjudgment on the claims asserted by Toothsavers against h m sounding in dental malpractice i and lack of informed consent. See. e.&, Alyarnz v. ProsPcct Hvsa ., 68 N.Y.2d 320, 324 (1986); - q u a v, Noble, 73 A.D.3d 204, 206 (1st Dep t 2010). Neither Toothsavers nor Ms. Gourzis substantively oppose Dr. Chaudhry s motion for summary judgment. Accordingly, Dr. Chaudhry is entitled to summary judgment dismissal of Toothsavers causes of action against him sounding in dental malpractice and lack of informed consent. Additionally, as Dr. Chaudhry has demonstrated that his care was not negligent: to the extent that Toothsavers has claimed that Dr. Chaudhry is required to indemnify Toothsavers or contribute to a verdict or judgment against Toothsavers based on his care, these claims fall away. Given the above, Toothsavers cross motion for an order granting it partial summary judgment on any claims that it is vicariously liable for the dental work performed by Dr. Chaudhry is rendered academic. Accordingly, it is hereby ORDERED that the motion of third-party defendant Dr. Ahmad Chaudhry s/h/a Dr. Ahmad Chaudhury, seeking summary judgment and dismissal of the third-party complaint against him, is granted, the third-party complaint is dismissed in its entirety, and the clerk is directed to enter judgment accordingly; and it is ,further -3 - [* 5] ORDERED that the cross motion ofthird-party plaintiff Sol S.Stolzenberg,D.M.D., P.C. d/b/a Toothsavers s/h/a S o l s . Stolzenberg, D.M.D., P.C. d/b/a Toothsavers Dental Center is denied as academic; and it is further ORDERED that the parties shall appear for a pre-trial conference on May 29,201 2, at 9:30 a.m. Dated: May I/ ,2012 ENTER: JOAN 13. LOBIS,J.S.C. FILED NEW YOIIK COUNTY CLERKS OFFICE -4-
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