Agaeva v Bay Ridge Dental Group, P.C.

[*1] Agaeva v Bay Ridge Dental Group, P.C. 2015 NY Slip Op 50908(U) Decided on June 11, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., ALIOTTA and ELLIOT, JJ.
2014-391 RI C

Alona Agaeva, Respondent,

against

Bay Ridge Dental Group, P.C., Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered February 7, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $850.

ORDERED that the judgment is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.

In this small claims action, plaintiff seeks to recover the principal sum of $850 that she paid defendant for performance of a root canal procedure which, she alleged, was improperly done. Following a nonjury trial, the Civil Court awarded plaintiff the principal sum of $850.

At trial, plaintiff testified that she had paid defendant $850 for a root canal procedure which, she alleged, was improperly performed in 2008, requiring her to have the same procedure performed by another dentist in 2013. As plaintiff failed to offer any expert testimony showing that defendant's performance departed from the requisite standard of dental practice and that this departure was a proximate cause of her injuries, she did not establish by competent evidence that the root canal procedure performed by defendant was done improperly (see Davis v Levine, 4 Misc 3d 143[A], 2004 NY Slip Op 51101[U] [App Term, 2d & 11th Jud Dists 2004]). While plaintiff contends that her action was not one for dental malpractice, but rather was based upon defendant's breach of contract, she failed to offer any proof at trial that defendant made "an express special promise to effect a cure or accomplish some definite result" (Clarke v Mikail, 238 AD2d 538, 538 [1997]).

In a small claims action, our review is limited to a determination of whether "substantial justice has . . . been done between the parties according to the rules and principles of substantive law" (CCA 1807; see CCA 1804; Ross v Friedman, 269 AD2d 584 [2000]; Williams v Roper, 269 AD2d 125 [2000]). As plaintiff failed to set forth a

prima facie case, we find that the Civil Court's determination did not render substantial
justice. Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment dismissing the action.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: June 11, 2015