Stackpole v Pasch

[*1] Stackpole v Pasch 2013 NY Slip Op 51684(U) Decided on October 15, 2013 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570453/13.

Veronica E. Stackpole, Plaintiff-Appellant,

against

Ian Pasch, Defendant-Respondent.

Plaintiff appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about October 9, 2012, after trial, in favor of defendant dismissing the action.

Per Curiam.

Judgment (Raul Cruz, J.), entered on or about October 9, 2012, affirmed, without costs.

The record and the ends of substantial justice (CCA 1804, 1807) support the dismissal after trial of this small claims action, where plaintiff failed to present any competent medical evidence to support her claim that the denture made by the defendant dentist was not properly measured or fitted. The result is the same even if we view plaintiff's claim as sounding in breach of contract, and not dental malpractice. "A breach of contract claim in relation to the rendition of medical or dental services by a physician or dentist will withstand a test of its legal sufficiency only when based upon an express special promise to effect a cure or accomplish some definite result" (Clarke v Mikail, 238 AD2d 538 [1997]), a promise not shown to have been made by this defendant.

Although the trial court did not render a decision in conformity with CPLR 4213(b), we find, upon our independent review of the complete record (see Weckstein v Breitbart, 111 AD2d 618 [1995]), that the evidence supports the court's determination.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: October 15, 2013