Cabrera v New York Univ. Coll. of Dentistry

Cabrera v New York Univ. Coll. of Dentistry 2009 NY Slip Op 29375 [25 Misc 3d 51] Accepted for Miscellaneous Reports Publication AT1 Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 18, 2009

[*1] Pedro Cabrera, Respondent,
v
New York University College of Dentistry, Appellant.

Supreme Court, Appellate Term, First Department, September 11, 2009

APPEARANCES OF COUNSEL

Jones Hirsch Connors & Bull P.C., New York City, for appellant. Kerner & Kerner, New York City, for respondent.

{**25 Misc 3d at 52} OPINION OF THE COURT

Per Curiam.

Orders, entered April 24, 2008, and June 17, 2008, affirmed, with one bill of $10 costs.

Civil Court properly exercised its discretion in granting plaintiff leave to renew based upon the affirmation of plaintiff's attorney explaining why his medical expert's affirmation was unsigned and redacted (see Mattis v Keen, Zhao, 54 AD3d 610 [2008]) and correcting the procedural error pursuant to CPLR 2106 (see Cespedes v McNamee, 308 AD2d 409 [2003]; Puntino v Chin, 288 AD2d 202 [2001]). On renewal, the court correctly determined that factual issues were presented by the conflicting opinions offered by the parties' medical experts as to whether defendant departed from the prevailing standard of care and, if so, whether such departure proximately caused plaintiff's injuries (see Prigorac v Park, 20 AD3d 363 [2005]).

McKeon, P.J. (concurring in part and dissenting in part). I agree with the majority that Civil Court properly exercised its discretion in granting renewal and permitting plaintiff to cure deficiencies in the expert affirmation submitted in opposition to defendant's motion for summary judgment (see Mattis v Keen, Zhao, 54 AD3d 610 [2008]). I disagree, however, with the majority's conclusion that the affirmation of plaintiff's expert was sufficient to raise issues of fact warranting a trial.

While plaintiff's expert opined that defendant's employees departed from good and accepted dental practice in their treatment of plaintiff, apparently in not initially utilizing more conservative modalities, nary a word is uttered on how that supposed deviation caused the [*2]multitude of physical complaints alleged in plaintiff's bill of particulars. Plaintiff's expert's opinion on causation consisted of nothing more than a generalized, conclusory statement that plaintiff's pain and suffering, both past and future, were caused by defendant's alleged malpractice.

Defendant's expert, on the other hand, was quite specific in explaining that plaintiff's claimed injuries were either preexisting, caused by smoking or poor oral hygiene, or neurologically and/or physiologically impossible, based on the treatment rendered by defendant.{**25 Misc 3d at 53}

Plaintiff's submissions, in my view, were legally insufficient to establish a causal nexus between the claimed departure and plaintiff's injuries (Koeppel v Park, 228 AD2d 288 [1996]). Thus, on renewal, defendant was entitled to summary judgment dismissing the complaint.

Schoenfeld and Heitler, JJ., concur; McKeon, P.J., concurs in part and dissents in part in a separate opinion.