Awkar v Zegarelli

[*1] Awkar v Zegarelli 2007 NY Slip Op 50891(U) [15 Misc 3d 137(A)] Decided on April 27, 2007 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., LIPPMAN and MOLIA, JJ
2006-76 W C.

Naima Awkar, Appellant,

against

Peter J. Zegarelli, DDS, Respondent.

Appeal from a judgment of the City Court of White Plains, Westchester County (Brian Hansbury, J.), entered September 27, 2004. The judgment, after a nonjury trial, dismissed the action.

Judgment affirmed without costs.

In this small claims action, plaintiff sought to recover damages for dental work which she was required to undergo as a result of defendant's allegedly defective dental services. In view of the fact that 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 (see Knutson v Sand, 282 AD2d 42 [2001]), she did not establish by competent evidence that defendant's dental
treatment was improperly done (see e.g. Blum v Yuabov, 12 Misc 3d 139[A], 2006 NY Slip Op 51333[U] [App Term, 2d & 11th Jud Dists]; Davis v Levine, 4 Misc 3d 143[A], 2004 NY Slip Op 51101[U] [App Term, 2d & 11th Jud Dists]). Plaintiff's testimony alone was insufficient to demonstrate that defendant departed from accepted dental procedures and, despite her contentions, the record does not indicate that she was prevented either by the court or by opposing counsel from presenting her case.

Our review is limited to determining whether "substantial justice . . . [was] done between the parties according to the rules and principles of substantive law" (UCCA 1807). In our opinion, the court below properly dismissed the action based upon plaintiff's failure to set forth a [*2]prima facie case.

Rudolph, P.J., Lippman and Molia, JJ., concur.
Decision Date: April 27, 2007