Drago v Etess

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Drago v Etess 2012 NY Slip Op 33118(U) December 28, 2012 Supreme Court, Suffolk County Docket Number: 07-10827 Judge: Daniel Martin 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] SHORT I'OR~l ORDER INDEX No. CAL. No. 07-10827 II-0071IDM SUPREME COURT - STATE OF NEW YORK IAS. PART 9 - SUFFOLK COUNTY PR ES E NT: Hall. DANIEL M. MARTIN Justice of the Supreme Court ---------------------------------------------------------------X CAROL A. DRAGO and BRUCE DRAGO, Plaintiffs, - againstJEFFREY M HESS, JOAN FRANCIS, RICHARD J. KLEIN, NOW DENTAL OF SUFFOLK, JEFFREY M. ETESS, D.M.D., pc., and RJCHARD J. KLEIN, D.D.S., P.c., Defendants. ---------------------------------------------------------------X MOTION DATE 8-17-11 ADJ DATE 8-28-12 Mot Scq. # 002- MG # 003- MD CHRISTOPHER S. OLSON, ESQ. Attorney for Plaintiffs 199 East Main Street, Suite 4 Smithtown, New York 11787 KAUFMAN BORGEEST & RYAN LLP Attorney for Defendants Etess 1205 Franklin Avenue, Suite 200 Garden City, New York 11530 CHESNEY & MURPHY, LLP Attorney for Defendants Klein 2305 Grand Avenue Baldwin, New York L1510 Upon the following papers nwnbcred I to 115 read on this motion and cross motion for summary jud!<ment ; Notice of Motion I Order to Show Cause and supporting papers (002) I - 18 ; Notice of Cross Motion and supporting papers (003) 19- 30; Answering Affidavits and supporting papers 3 1- 70; 71-104 ; Replying Affidavits and supporting papers 105-106: 107-1 OS ; Other snr-rt.'plv 109- 115; (aod Jftti Ire,uilI.=-eOtlllsc! ill S"PP()It and oppo.~cd to the llJotion) it IS, ORDERED that Illation (002) by the defendants, Jeffrey M. Eless, and Jeffrey M. Etess, D.M.D., P.C, pursuant to CPLR 32] I (a) and (b) and 3212 for suml11aIyjudgment dismissing the complaint. is denied; and it is further ORDERED that motion (003) by the defendants, Joan Francis, Richard J. Klein, und RiChard J. Klelll, D.D.S., P.c., for summary Judgment dis1111ssll1g complaint and any cross claims and/or counterclaims the asserted against them, is denied. IIIthis dental malpractice action, Carol A. Drago and her spouse, Bruce Drago, se~k damages personally and derivatively arising out of the dental care and treatment rendered to Carol A. Drago by the defendants, Jeffrey M. Etess. Jeffrey M. Etess, D.M.D., P_c., Joan Francis, Richard J. Klein, and Richard J. Klein, D.D.S .. P.c. from January 1999 through January 2006. It is elaimcd that the defendants, Jeffrey M. Ercss, and Jeffrey M. Etess, D.M.D., r.C'., negligently departed from accepted dental practices, in, inter alia, failll1g to diagnose and treat plaintiff for an infection in her ora] cavity and surrounding structures, causmg permanent damage to adjacent structures of the [lee, sinus cavities, skin tissue, nerves, muscles and bones, and failing to prOVide Informed consent for the services provided. [* 2] Dr·ago v I-.tess Index Nu. 07-10S27 P;I~L'No . .::! The defcndants. Jcni-cy M. Etess. and Jeffrcy j'v1.Eless. D.M.D., P.C. now seck smnmary judg1l1cllI dismissing the complaint as asserted against them on the bases that any clall11S arising prior to Seph.'mbcr 1_ 2001 arc barn~d by the applicable statUlc orhmitatiotls as set forth in CPLR 214-a, thai they did noL nL'gligcntly depart Ii-om the applicable standards of care and trcatment, that they provided proper in f0ll11ed consent <.lndthat they did not proxl1llately cause the plaintiff's clatllled injuries. The dckndan[s, Joan Francis, Richard.r. Klein, and Richard J. l<lein, D.D.S., [J.e now seek sltmnwry judgmcnt dismissing Lhe eompblllt on the bases that all clall1lS arising our of the dctltaltrcatment rClllkrcd prior to October 3, 2()04 arc barred by tilL' applicable statute of limitations, and that Lhey did not neglIgently tkpan from good and accepted standards of dental care It1 rendering treatment to the plamti IT. It is noted that the Notl.' of Issue and ('crti licate of Readtl1ess were filed with this court on April 6, 201 J. The last date to serve ;;l motion lor summary Judgment pursuant to CPLR 3212 was on August 4, 20 II. The moving defendants did not serve this cross motion for summary Judgment until September 26. 20 J I, well beyond lhe statutory 120 days. The moving defendants have made no application for leave of coul1 on good cause shown to file thIS cross motion beyond the statutory one hundred twenty days, and, in facl, have not submitted any reason for the delay in sllbmilling the moving papers (Sl?C', lII'il!soll )' Brisman. 40 AD3d 574, 833 NYS2J 406 [2d Dept 20071; Brill D I' Ci~JIofNcll' York, 2 NY3d 648, 781 NYS2d 261 [2004J). PC Accordltlgly, motion (003) by defendants [or summary judgment, is denied .Joan h·ancis, Richard J. Klein and Richard.!. Klein, D.D.S., The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tcndering evidentiary proof in admissible form sufficient to eliminate any matenal issues of fact from the case (Alv(lrez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Friends of Animals I' Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 (l979]). The proponent has the initial burden of proving entitlement to summary judgment (Willegrad), New York Unh,. Med. Or., 64 NY2d 851, 487 NYS2d 3I6 [1985]). Failure to lll:Jke such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id). Once :.lprilll:.l lucie showing is made, the burdcn shifts to the opponent of the motion who, III order to dereat summary judgmcnt must prorfer evidence in :Jumissiblc form sufficient to require a trial of uny issuc of fact or demonstrate illl Clcccptablc excuse for his failure to do so (Zlickerflltlll)' Ci010INelli York, 49 NY2J 557, 427 NYS2d 595 l.lnOJ; Joseph P. Day Realty Corp. Jl Aeroxon Prods., 148 AD2d 499, 538 NYS2d 843 [2d Dept 1989]). The opponent must assemble, lay bare and revealll1S proofin order to establish that the mattcrs set forth in his ph::udtllg arc real and capable of being established at a trial (Ca~tro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981]). Summary judgment shall be granted when the cause of action or defense is established sufficiently to w:JlTant the court as a matter ofla\\' in directing judgment in favor of any party (CPLR 3212Ib]). The requisite clements of proof in a medical malpractice action arc (1) a deviation or departure from accepted practice. Jnd (2) cvidence that such departure was a proximate CJuse of llljury or damage (Jlolloll I' Sprain Brook M(tIJ()I' Nursing Jlome. 253 AD2d 852, 678 NYS2d 503 12d Dcpt 1998], rtpp denied 92 NY2d :s 1:S,085 NYS2d 420). To prove a prima faCIe case ormcdicalmalpractice, a plaintiff must cstabhsh thaI dcJcndant's negligence was a substantial factor III prodUClllg the alleged injury (see. DenlittJ"itlll I' Felix COlltracting Corp., 51 NY2d 308, 434 NYS2d 1()6 [1980 j; Prete I' Rttjltt-Dellletrious, 221 AD2d 674, ()3g NYS2d 700 [2d Dcpt 1996]). Except as to matters Wlt!llll the ordinary experience and knowledge OrlaYlllCtl, expert medical opiniotl IS necessary to prove a deVIation or departure from accepted standards Oflllcdical care and Lhat such dcparture was a proximate cause of the plaintiff's mJury (see. Fiore" Galang, 64 NY2d <)99. 48l) NYS2d 47lI1J85]; I.YOIlS 1'll'/(:Cauley, 252 AD2d 516, 517,675 NYS2ei 375 [2ei Dcpt 1998]. app c/elliec/92 NY2J 814, 681 i\YS2d 475; Bloom I' City o/New York, 202 AD2d 465, 465, 609 NYS2d 45 [2d Dcpl 1994]). [* 3] Drag() v h\..'ss 11\1..11.:,'\ No 07-10X27 In support of motion (002). the Etess defendants have submiucd, inter alia. an attonley's allidavll. Cl)pleS of Ih\..' Ulllmons and complaim. Ihe answers submiued by the moving dekndants: the plaimilT's verified hi lIs or S particulars; uncet1llied copy of the plaintiff's dental records; the expert afllllllatiolls of Ch:ules Solomon. D. D.S. and Kenneth SclllK'lder. M.D.; thL'signed transcripts orthe examinations before trial orCarol Dragl1s dated Septemher -I-.2U08, Joan Francis dated March 18. 20 I O. and the unsigned transcripts or the e:xamlnatlons heforL' tnal orJcffrey Etcss dated December 20, 2009. The unsigned transcript orthe moving dcfl'ndant. Jelli'ey hess. is considered pursuant to /hhifl' Won Ok Lt'£!, 57 A03d 700. 8(lS NYS2d 90612d Dcpt 2008]) as lCstimony adopted by hm1. The ullcertilied copies orthe plaintiff's medical/dental records arc not in admissibk 101111 pursuant to CPLR 3212. hut have not been obJccted to by the plaintiffs. C;\ROI. DRAGO Ms. Drago testified that in Novl:l1lber 2003, Dr. Etcss performed a root c,lllalto her left upper mol'lr. Alicl"the root canal was done, a cro'A-'n was later placed on the tooth by Dr. Francis. Although she no longer had sensillvity to sweets aner the crown was 111 lace, she still had the same complall1ts about the tooth as she did p prior to the tooth being treated, so Dr. Francis adjusted the crown. Throughout 2004, the tooth hurt when she chewed, and she had a more intense sensitivity to cold than previously. She then had a crown placed on the tooth in back of the tooth on which root canal was done. In 2005, she had increased sensitivity to cold and devdopcd tendenlcss while brushing her teeth on the lefi side of her mouth. She saw Dr. Francis 111 March :W05, and was advised that her gum was red and swollen. She was referred to Dr. Etcss, who advised antibiotics for gingivitis. She experienced relief of the tcndemcss but still had sensitivity to cold. From aboUi October 2005, she had a foul taste in her mouth, and the sensitivity, soreness, and tendemess were increasing. In November 2005, Dr. Francis recommended that she see Dr. Etess who believed she mighl have a retained root for which an apicoectomy was perfom1ed on December 16,2006. Ms. Drago stated that while Dr. Etess was perfonning the procedure, he advised her that he invaded the SlllUScavity and iITigated it with an antibiotic. She testified that afterwards she wus placed on antibiotics, hcr nose was dripping, and her throat and eycs \\lere burning and sore for several clays. Ms. Drago continued [hat Dr. Etcss cxamll1cd her on December 19, 2005 and removed the sutures on fkcclllbcr 2:)'J. On Decembel' 26, 2(J()5,she was rinsing her Illouth and noticed w<l1erCOlllltlgout ofhcl'icll 1I05tl"ll.She could not remember ifit occurred again after that, but she believed It did. On December 27lh, slle Sinv Dr. Ctess who stitched all open area 111 er mouth. When she saw Dr. Etcss on .1anui.ll)'3, 20()(j, she told h hllll she had numbness in her lip, pain in her left upper jaw, difficulty chewing, and that her face \vas still a lillie hit swollen. She could not recall his response, but she stated that he advised her it would get bettcr. He also removed the sutures, but later that day. she drank water and it started pouring out of her nose. She statted drinking with a straw and had no f11l1hcr nstances ulltil she saw Dr. Etess again on January 6. lOO(), at which i tillle the area was rcsuturcd. Sutures were removed on January 13,2006. The pain in her left upper jaw decreased Ihcrl:after. but she still had some numbness in her lip. She began experiencing some dizziness. with prl'sslll"e ll1her Ic:fteye and forehead. Ms. Drago stated that she h"d a CT scan perlonned, then saw an car, nose and throat physicwn, Dr. CJrosso. who told her there was a communication to the sinus where she had the dental surgery, and that there was ,In infection. She then testified that Dr. Grosso \Old her the infection was In her tooth and that she needed to see an oral surgeon. She went to PlainView Oral Maxilla-Facial Associates and saw Dr. Bass who advised her that the tooth was llliccted HildIhat she needed to have it removed to clear up the infection. It was extracted 011 I:dmldry 17, 2()()()by a Dr. Morns of Dr. Bass' onlce. She did not recalllrhe Illt.lic<ltc:d her that the [tloth to was inlCctcd. When she returned to him a wed~ later. she told him that she still h,ld ,lInt orpain amI numbness, [* 4] Drago v l·:tes~ Index No. 07-10827 Page No . .4 she could not eal on that side. she fdt very congest~d, and also Celt pressure in her C)'l'. Dr. rvlon'is advised her that the area was healing well and 10 give it some time. She followed lip with Dr. Grosso and had sinus surgl..'ry on March 23, 1006. After the ENT surgery. the Ilumbness in her lip was worse. she had numbness in her gum and the lcn check. the pain and sensitivity in her teeth \vas worse, and she STill had soreness to the left side of her face. She stated that Dr. Grosso told her the numbness would resolve in about a year, but it only lInproved. Thereafter. she developed clicking and pain in ber len upper jaw and saw Dr. Tracey Rosenberg \vho prescl"lbcd ll1uscle relaxanLs for TMJ. She did noL recal1 if Dr Rosenberg told her that this was atlributable to clenching her [ccth, however. Dr. Rllscl1berg preSCribed a night guard to place ill her mouLh. but she llJd not have the pn.:senptlOll tIlled beeausc her lllsurance (hd not cover It. On Apri I 17, 1006. when she saw Dr- Grosso, she told him that she had marc pressure, llumbness and congestion, bUllhc gum sensitivity and swelling went down, and on August 9, 2006, told him Ihat the numbness 10 her lip and upper mouth had not improved, the pain in her teelh and gum increased. and she was having a dllTicuh time chewing on that side due to pain. She thell saw Dr. Ruggiero, a dentist/mcdical doctor, who examined her and referred her to a pain specialist and an cndodontist for nerve pain. She followed with Dr. Stamatos in July 2007, and was referred to Dr. Ford, a facial pain specialist', and to Dr. Levllle, a neurosurgeon. Dr f.ord referred her back to Dr. Stamatos for a nerve block, wh.ich only improved her symptoms for a short penod oftillle. Dr. Levine performed a rhizotomy wherein the nerve causing pam 111 11(;1' fuce was ldcnt1flcd <l11d zapped to stop ihe pain, under general anestheSIa. Thcreaner, she experienced excruciating pam. and still expericnces pain on the side of her head and face, extreme sensitivity to her upper front teeth, and muscle spasms. however. she had less pain to the left upper tooth area. She also began to experience a tapping sound in her car, which interferes with hearing while she is e::lling. Dr. Levine told her he felt it was caused by finh motor root nervc damage, She then saw Dr. Kaydcn, an endodontist, who told her the roots of the teeth were causing her pam, but she could nOI remember which teeth. She has also had acupullcture from Dr. Chon for spasms, pain in her eye, numbness to her left upper lip and lOath, and muscle spasms down her neck and back on the left side. She also had all her wisdom teeth extracted in order make more space to have a bridgc fitted. JEFFREY ETESS, DDS Dr. ELess t~st1f~ed that he is licensed to practice dentistry in New York. He bec<lme an indepcmlellL contractor for Now Dental in Seplember 2003 pursuant to an oral agreemcnt \vith Dr. Richard Klelll, and IS selfemployed as Jem·cy M. Etess, D.M.D . ¢ P_c. since 2000 or 2001. lie had no independent recollection of Car oJ Drago but could recall some instances that he spoke with her. He testified thalthc first tillle hc saw Ms. Drago as a patient was 011 October 7, 2003. He testified as lO his care and treatment of loath #14 (upper left). '.vhieh had been previously cut down for either a dental crown or a large dental restoratioll. He stated that tooth H-14 had a very thin pulpal nom, that its viability was qucstionable, and thai he trealed it with a root can;J1. Hl' referred Ms. Drago back to Dr. FranCIS, her treating dentist from whom she was receiving acllVO treatment. When she n..:lUrI1cdLo Dr. ctoss on March 1S. 2005. to see the dental hygienist, he noted that she had a perio abscl'sS of tooth If 14 for whIch he prescribed an antIbiotic and P(;ndex mouth rinsc. Ms. Drago was aguill rc:Ccrt'ed to him ror all c:ndontic consul! on December 1, lOOS concerning lOath #·14. IIc. deternllned the 100th Iwd ,\ dnlining I'istub to the llleslUl buccal root, as determined by guLta perch a applieallon. He sLated tlwt the meSial buccal root SlLs within the maxillary sinus. In this instance, It was the JegelH.l<lryfaurth canal whIch he relL \Vas treatable. lIe tesLdled thal it was not a normal pathophYSIOlogy far a periodontal abscess to progn ..:ss into a listula, and that the abscess and the fistula were two separate conditions. He performed a curettage and ront resection apicoeclomy on Deeemher 16, 2005 for an obvious cysl-like lesion over the apex of the Illl'Slal root of tooth It J 4. There was no periodolltal abscess present and he did not dctenlllne thai there was a max illary [* 5] Drago \' Et\.'ss Indl,::'; No. 07-1 OR27 I'ag\.' NIl. 5 sinus intCctiotl. He slat-.:d thatlw would have tolel Ms. Drago that sinus exposure procedurc which involves delayed healing and possible secondary infections. IS ~l nsk or compilcatiolllll"lilc Dr. Etcss stated that. thcrc<lller. over the weekend. Ms. Drago had swclling and Dr. Francis changed her antibIOtIC. Hc saw her on December 23. 2005 for suture remova1. He noted no swelling orher t~ICC.and she olYen:d him no cornpl'\lJlls orpam or pressure or tcanng in her lel1 eye, and showed no signs ofmJCction. On Decclllbcr 27,2005. Ms. Drago called ~\11d advised that the suture site opcncd up. He \\'1'otc in his note that she developcd an oral angular fistula which he stated was a communication. not a fistula. as the II1fection had been rClllovc<.Lso he resutured the arca <lnd prcscnbed another antibiotic for any secondary infection while thc area was healing or h,'Tanulating. Thosc sutures had to be removed on January 3,2006. at which time. no signs of lllfcctlOl1 were noted and she offered no complaints. Thereafter, she called him repealedly. and relurned to see him on January (), 2()()(). at which time he placed another suture Into the area and lound ,1 senSitiVIty al tooth #30. Dr. Eress tesli fled that tinal suture removal was performed on January 13, 2006. after which time she abandoned further treatment with him. CHARLES SOLOMON, M.D. Charles Solo111on. D.D.S. has set forth in his expert affirmation that he is a dentist duly licensed to practice dentistry in New York and an endodontist with over Carty years of clinical experience in the treatment of teeth and is fully l~llniliar with the standards of endodontic care, including root canals and apicoectomies. He has sel forth the materials, including dental records, x-rays, the records of subsequent medical providers, and the plaintiff's bill of particulars, which he reviewed to fonll his opinions, and set forth his opinions with <I reasonable dCb'Tee of dental/endodontic certainty that the care and treatment rendered by Dr. Riess was reasonable (J( all times and well withm the endodontic standard of care. It IS Dr. Solomon's additional opinion that Dr. Etess, did not proximately cause any of the injuries claimed by the plainti fr in her bill of partIculars. Dr. Solomon stated that Carol Drago became a patient of Now Dental on January 6, 1999 when she presented for a routine dental examination. He set forth her care and treatment with Dr. Francis, includmg a visit all July 23. 2U03, when Ms. Drago returned to Dr. FranCIS with compla1l1ts of disc om forI with sweets Involving tooth #14. Al the tlllle. tooth #14 had an old crown, which Dr. FranCIS advised her needed to be rcplaced. On October 3. 2003, she was still having symptollls with tooth #] 4 lor almost a year. so [k Francis questioned periapical pathology on the distal buccal root and referred Ms. Drago to Dr. Etess for an endodontic evaluation. She was fitted with a temporary crown. There \Vas barely any solid tooth structure revealed on xray. Dr. Solomon continucd that Dr. Etcss first saw Ms. Drago on October 7. 200J whcn shc prcscntcd With the dllcfcolllplwnt of chronic pain in the left maxilla lOr six months. Upon exaillination. Dr. Etcss doculllcnted thc questionable vitality or tooth #14, and fm1her noted probable periapical pathology, that there was an extremely thin pulpal noor, and her tooth was sensitive to percussion_ She was to undergo root canal therapy to remove lhc pulp tissuc of tooth #14 on thc next VIsit on November 24, 2003. Ms. Drago had hcen advised of the risk orlhe root canal, including infection. root perforation, and susceptibility to rracture. The root canal ther:lpy to tooth Ifl4 WdS perrol'l11cd without any ~\pparcnt problems. Dr. Solomon set forth tllc procedurc used by Dr. Hess. Including measunng the lengths ortl1e three canals. blOlllcclH.l\llcally preparing thc canals. and filling them w1th gutta perella and a scaler. On Novcmber 24,2003. Ms. Drago also saw Dr FranCIS lOr crown prep placclllem or a temporary restoration of tooth 11 14, and had no eomplamts of swelling, sorencss or tendcmcss. \Vhen shc retuElled to Dr. Francis on December S. 2003 ror placement of a crOWElwith temporary cemenl, she.: reporlcd sensilivity 10 tooth #l5 Bitewing Jnd pcnaplccll x-rays \vere taken and a tcmpor,lry filling l11atcrldl WllS placed In tooth 1115. On March 30, 2004, Dr. Francis placed a permanent tilling in tooth #15 ;\\ld [* 6] Drago v Etcss Indc.\: No. 07-IO:S27 Pagc No.6 p~rm;lncntly ccmented the CfO\\·n on tooth #1-1-. It was noted that tooth #] 5 reqUIred a crown due to a buccd cracK. On April o. 2004. Ms. Dr:.lgo presented to Now Dental complaining that tooth ;'i14 was painful. thai sho.: could no! bllC down. and that the crown 0111hal tooth felt ]oosc. Dr. Francis Jound no abnolll1alltics upon examination o1"tl1c whole mouth all Apnl 7. 2004. cxcept for tooth #15. which \Vas preparcd ror a croWl] OIl Apn12() . .2U04. On May 13, 1U04. Dr. Francis attempted placemcnL of the crown on tooth #15, ho\vcver. this waslIllsLlccessfllll1l that it did nol seaL properly <lllda Ilew Impression \-vns takell. On July 14, 1(J04. a tcmpor~\ry crowll was placed on tc)oth it]5 by Dr. Francis. and on September 8, 20U4, the crown was pcnl1anclltly cemented. Dr. Solomon slated that all March S, 2005, Ms. Drago presented to Dr. Francis with discomfort or her uppcr lell mouth and slight swelling all the buccal gingiva ortooth #14, with soreness of the gingiva. Scaling and irrigation with Perioguard was done, and Clindimycin was prescribed ror a periodontal infection. X-ray examination of the lomh revealed no abnomlalities. When Ms. Drago presented to Dr. Francis on March IS, 1005 lor a cleaning. Dr. Francis asked Dr. Etess 10 see Ms. Drago conecrning a periodontal abscess to tooth #14 lor which Dr. [less prescribed ,Hl Jtltibiotic after examining Ms. Dr<.lgoand reviewing x-rays taKen tell days prior. He further instructed her to brush and noss around the crown_ There \verc no complaints aboul tooth #14 until Novcmber 29,1005, when Dr. Francis noted () fistula\ upon x-ray exam, and traced it with gutta perch a, however, the plainti IToffered no complaints of tenderness, s\vell ing or sorcness. Thereafter, Ms. Drago presented to Ot·. cress for an endodontic consult for tooth #14. Dr. Solomon further indicated that Dr. Etess traced thc fistula to the mesial-buccal root and suspected a fourth canal was present which was not observable during the prior root canal in 1003. She did not have increased pain, sorcness, tenderness or swelling, and there was no build up or pressure from the infection. She was advised of the risk that there wus no guaralllee that the procedure would be succcssful, and that her treatment options were apicoectomy or extraction of tooth #14. At thc next visit on December 16, 200S, Ms. Drago rctull1ed to Dr. Etess for an apicoectomy to rcmove the root tip and SUITOlllldillg infected tissue Oll tooth #14. Dr. Etess observed an obvious cyst like lesion over the apex of the mesial buccal root. Curettage and apical root resection wcre performcd, retrofill seats in the mesial and distal root apices were bonded, the SIl1US W:ISexposed to the adj(jcent mesial bucc(jl root and a collagen membranc was placed over the sinus exposure (lrl;:ato give the membrane the opporlunity to heal. The site v,'as irrigated with PencJcx and saline, and sutures were placed. Pain I11cclicatlon, Prcdl1lsone, Peridex, Motrin, and an antibiotic were prescribed. A lloLe or December 19, 1005 reveals that the antibiotic was changed by Dr. Fnll1CISover thc weekend due to swelling. Dr FrallCtS adVIsed Dr. Etess that the periodontal dressing placed all tip or the gum tissue and sutures had fallen out the previous day. Dr. Etess callcd Ms. Drago two times at homc over the weekcnd and once on her cell phone. Sutures were rcmoved by Dr. Etess on December 23. 2005. Healing was noted to be within normal limits and there wcre no complaints by the plaintiff of sinus congestion, pain, swelllllg or heat sensation. Dr. Solomon continued that all Dccember 27,2005, the p1aintiiTwas scen by Dr. [tess who documented tllat the pbinlilThad a tear al the suture site over the weeKend. Dr. Etcss diagnosed an oral-antral fistu1:1, or c0l11111l1nicatl0l1 without Infection, which was sutured aftcr liTigation of tile area. On .lanuary 3, 10()(), the or~ll:Intt-a! listula was sLil1present, but smaller, with no signs orinfCction. Sutures were removed. Otl.lallu'lry (1, 1()()(1, Dr. Francis saw the plaintilTwho alTered complaints ofexlrCl1lC sensitivity in till:: lingual/gingIval area 01· loath to I 10 which GILlllltl, a desensitizer, was applied and lor which PrevldcnL was given. Then; was much IDr. Francis indicates that a fistula is a communication and the inside bone where there is an inrection. betwecn lhe outside orthe mouth [* 7] Dmgo v Etess lndl.:x No. 07-10S27 Pagl.: No.7 occlusal wear/recession and Dr. Francis advised her that the tooth might r('qmre an endodontistMs_ Drago also saw Dr. [less on January (J. 2006_ Toolh #30 was checked for sensitivity and 110inl(-c(ion was found. He advis\,.'d her. in response to hercomplalIlt that (he su(ure site at #14 \Vas nOI closing. that the granulation (akes SIX to eight weeks. A cross-stitch suture was placed 011tooth #]4 and was n.::moved on January!}, 200(). Sh\,.' was 10 he rc-cvaluaiCd III two weeks. but did 110treturn, Dr Solomon stah~J Ihal Ms. Drago ullderwent a CT of the SIl111SeS11J:'llluary 1S. lOO() at North Shon:.' 0 University Hospital-PlalIlvicw. which CT revealed mucoperiosteal thIckening in the bilateral maxillary sinuses and thickening in the ethmoid SInuses, with completc opaclflcation of the left Crontal sinus, as well as 1ll1lcoiKrioSlealthickening 1n the right li-ontal sinus. The findings were strongly suggestive OfS1t1l1S1tIS.Dr. Solomoll statcd that Dr. Grosso, all ENT physic1an, saw the pl<lintiffon Febnlary 10,200(1 and noted tl1:11thc lislula Vv'<.lS closcd and there was 110evidence of an in!lallled gingiva. 011 February 13, lU()(), [he plaintlCr prcsiJJlled to the Pla11lVIeWOral & Maxillof~lcial Associates with compl,-unts OrSlI1l1Spaill. She had an aplcneclomy 011Deccmber 17,2005, follO\ved by an opening orthe inc1slon WIth nasal return and SlllUSltiS. It was noted that the plainti iT needed all extraction of tooth 1+ 14, which was donc on February 17, 2006. On February 23, 1006, the plainti 1'1' rctLtllled to Plainview Oral & Maxillofacial Associates, complailling of sinus pain. She was advised that if the fistula did not close within a certain tIme that a procedure would be needed (0 close il. I lowevcr, by March 14.2006, it \Vas noted that lhcre was 110opening and the tissue \vas healthy, On March 23. 2006, the plaintifrullclcrwcnt a Caldwell-Luc procedure by Dr. Grosso. Dr. Solomon indicated (hat according to the hospital record, thai the plainti ff gave a history of a recurrent and chronic sinus infection, mostly left sided; and that she had a history of an associalecl dental infection which was resolved with antihiotics, During the Caldwcll·Luc procedure, Dr. Grosso noted a large amOlllll of polyps in the left maxillary area. SurgICal pathology ](lentified paranasal sinus with chronic inflammation and moderate cosinophJlm, with a large amount of polyp disease, hypertrophic mucosa, as well as polyps in the left maxillary antrulll without any indiction of in fccti 011_ Dr. Sololllon continued that on April 28. 2006, the plaintlffretul11ed to Plainview Oral & Maxillol~lcial Associates ,ll1d stated thut she felt as Ifher jaw was locked She was scen by Dr. Truccy Rosenberg who d iagllosed hel" \-vith severe brux iSI11 teeth grind mg, accoJl1pan icd by clenclllllg 0 r the .Jaw. Dr Rosen berg or 110tcd there was no scqucl1ac to the C,llL!well-Lltc procedure, ,Itld rat!iogr,1pl1ic cXi.\Ill\llalioll revealed the TM.I bony structures to be Within l1ormallilllltS. She recommended moist heal, sofl diet, a night guanl, and a 11011slcl'Oidal anti-inllalllmatnry ror pain. One year later, on Apn12G, 2007, the plaintiCCprcscnted to Dr. Sal Ruggiero, an oral surgeon, for evaluation of left facial pain. Dr. Ruggiero noted that the symptoms oC regional pain wcrc noi present prior to the Sll1USsurgery, and that then: was some injulY to the peripheral branches of tile alveolar nerve supplying that area. 8ccause the pain localized to the tooth that haJ apical surgery and was then I..'.\tracted, tIle treatment associated with that tooth # 14 could not account for the anterior extension of the p<.lin. lie n:<:ollllllended that she have the kll maxillary teeth evaluated by an endodontist. Dr. Solomon set lorth his opinion that the tn:atment rendered by Dr. Etcss was reasonable at all times, ;JnL!(h:l\ It dui not pro.\llllatclycalisc (he plaintifT's alleged injuries. lie set fi.)["ihth(.' dates of treat men I and his opinions that the proper procedure and treatments werc employed. lie cOlllinlied that the root canal was properly Il1dicatcd and performed. He stated that Ihere \Vas a question of viabi IllY of toolh # 14 hecause the plaintifThad pain in that loath for SIX months prior. He also stated that thc records ,-llld lilms establlsh that a fourth callal on the alTcctcd tooth # 14 \vas not detectable. Rcc<luse Dr. Etess did not see the plamtirr for l1e:'lrly sixteen 11l0l11hsafter thc procedure, and because she had no complal11ts dunng that time, 1I1<.1t was not posslhk it I"ora sinus infection to lie dormant and asymptomatic for sixteen months. On March IS, :20(J5, \vhcn Dr Ftess (Iiagl'l\.)scL!() pen don tal abscess Oil tooth #14, ant IhI Ot1C,'; ere t he proper trcallllcn l. !nst ruet 1 w ons to brush ami [* 8] Drago v El~SS Indcx No. 07·10827 Pagc Nu_ g floss around the crown. as well as prescribing Pcridc'\ rinse were appropriate. Dr. Solomon continued that the plaIl1tlffs ~l1kgalions with regard 10 the tUlle period Crom March :22, 20()5 through November 29. 20()5 are without met'it, as the plainti ITwas not seen by Dr. Etess nor was there any contact bct\vecil thelll. Dr. [tess did lIot tre<.ll[11..:: plaintl rc on November 29, 2005, as she was seen by Dr. FranCIS, thus, any clanll orl11alprac[icc by Dr. Etess on Ihat date is WIthout merit. and there were no signs of lIlfCC1IOnon that date. Dr. Solomon 0pll1cd that on December I. 20U5. \\"hCll Dr. Etess decided to perfon11 an apicoeclOmy, that the development oflhe tis!ula was not related 1OIhe periodontal abscess that was previously Ireated by him. as it is not the non11al pathophysiology of a periodontal abscess to tUn1 into a fistula, and that it was separate and apart from the previous periOdontal abscess. Additionally, opined DL Solol11on, fistulas represent localized chronic draliling lllfections Ihat dry up and disuppear aller cndodolllic Iherapy. Dr. Solomon f"unher opined that jllst because a root canal is unsuccessfuL It is not inuicativc: of malpr~lctlc0, and that 10% or mot canals fail. I-Ie also staled that the record reveals that there \vas no evidence or an infection of the maxillary S1l1US.The plainti rf did not complain of sinus congestion, dull, achy, constant palO on the left side of her face, pain or pressure in her left eye, facial swelling, or redness and heat sensation on the left side of her face. He continued that there were no signs ofinfectiolllhrough December 27, 200S, or on January 6,2006 when Dr. Etess placed Ihe cross-stick suture at tooth #14. On January 13,2006. when DL Etcss saw the plainliff, she was noted to be doing well. (t is Dr. Solomon's fUlthcr opinion that the plaintiffs complaints of temporomandibular Joinl disorder and the accompanymg complaints were not proximately caused by Dr. Dess' treatment of the plaintifC but rather the plaintiffs TMJ condition. He continued that [he resulting eomplalllts were atlributable to bruxism (teeth grinding), clenching of the teeth, lack of usc of a nlghl guard to prevent teeth grindlllg and clenching, despite the same hav1l1g been recoIllmended. Dr. Solomon concluded thai Dr. Etess canal and the apIcoectomy in December 2005 the treatment options and potential risks, and attempt to reduce pain, salvage Ihe tooth, and obtained the plaintiffs informed consent [or both the initial roO[ as the procedures were fully explained to the plaintiff, Including that the plamtiff consented, as would a reasonable person in an clear up the infection of the tooth. KENNETH SNEIDER, M.D. Dr. Kenneth Sneider is a physician iJcenscd to practice llledic1l1e ill the State or Ne\v York and IS board cendlcd in otolaryngology. It is Dr. Sneider's opinion that the plaintiffs claim of a causal connection belween the oral-antral fislUla, or eommullIcation. and infection to the area around tooth #14 and her need for sinus surgery on March 23, 2006 is without merit. Dr. Sneider set forth the records and materials he reviewed. and the plaintiffs presentalions during her care and trealment by the defendants, and also her visits \vith Dr. Grosso and the Plainview Ora! & Maxillol~lcial ASSOCiates. Dr. Sneider sIal cd that according 10 the- plaintifTs admISSIon history, she had a "chronic headache secondary to chr011le sinusitis, mostly left side-d. When the Caldwell Luc procedure was pcrflJrl'lll.':d, Dr. (jfOSSO noted a large amount oCpolyps inlhe len llli.1Xdl~HY area, alld surgical pathology r..::vcalcd no Inkction, but instcau, paranasal S1l111S ith chronic II111ammatl0l1 and W llloderate eosinophilia, with a large amount of polYPoId disease, hypertrophic mucosa. and polyvs III the !en maxillary antrum without infection_ Dr. Sneider continued that when Dr. Rosenberg examined the plail1\iff for her pain in the bilateral masseler region due to clenching, he detennined Ihal the Illyofacial pain disorder was Jue to bruxism. Dr Rosenberg also documented thallhcrc was no sequcllae to the Caldwell Luc procedure on March 23, 2006. When Dr. Ruggiero, an oral surgeon, exal1lllled the plal11l1Cf011Aprd 27, 20D? lor evaluatIOn oflen facial pain, Dr. Ruggiero noted that [he epIso(!c or oral anlral communication \vas dei.lIt with by the treating oral surgeon, [* 9] 0r;1);0 v Ftl'SS Index N\). 07-IOtln l':.lge No.\) ;Jnd the ('1' scan taken prior to the SIt1US surg.:ry reve~l1cdthickened mucosa in and around the Ooor or tile sinus and around the pre-molar and molar area. There did not appear to be any changes withlll the bone itsell: which \\"Quldindicate an inkctlOn. The CT scan was signilicant only for some minor thickening of the noor of till.": :1i h sinus. A Panorcx reveakd that the bone in the area of the posterior and antenor maxilla was nOnllal She \Vas given l.idocaine and Epinephrine which removed all of her tooth pam and gum pain. but she still had tingling sensation of the lclt upper Itp. Dc Sneider stated that Dc Rosenberg noted that ahhough the plaintlfThad pain localizeu to the tooth that had apical surgery. \,vhich was then extmcted. the treiltment associated with thai tooth fil-l could not account lor Ihe anterior e-"-tensionof the pain. He further notl..":d possibility, thaI the teeth the could be non-viable ami thus encouraged her to have the lclt maxIllary tceth evaluated by thc endouontisl. Dr. SneIder addressed all orthc plaintiff's claims set forth in her bill Ofp,lr(icu1ars, and stated his opInion WIth a reasonable degree ofme(1Jcal certainty, that there is 110 causal conncction bl't\.\,'eenthe ora I-"lllI1',11 Ilstula or commulllcation and infection to the area around tooth tt14 and (he need Jor rhe sinus surgery on M<.u·ch n,2008. Dr. Sneider opined that the plaintifrs findings on the CT scan of January 18,2006 of bilateral mucoperiosteal thickening in the maxillary sinus (adjacent to the oral cavity), ethmoid sinuses, complete opaciflcation of the left frontal sinus and mucoperiosteal thickcning in Ihe right frontal sinus, arc consistent \",ith chronic sinusitis, also known as rhinosll1usnis. Dr. Sneider continued that sinusitiS refers [() lI1f1ammationorthe sinuses. and is not necessarily infection of the sinuses. It is Dr. Sneider' opinion that the plaintiff suffered from chronic sinusitis which manifested inflamed SHluses, not infected sinuses. Dr. Sneider opmed that there is absolutely no evidence from the operative report and pathology report from the March 2006 surgery that an infection had spread. or was even present in the SHlUSCS.ie stated that inflamed polypoid tissue, and l hypertrophic mucosa, is typical inflammation observed with patients with sinusitis. The revelation in the pathology report was that of eosinophilia, which is a white blood cell indicative of allergIC and other types or reactions. He continued that had therc been an infection present in the sinuses, that ncutrophils would have been prcsent, as they arc the white blood cells which create pus and ingest and kill bacteria. The absence of the nculrophils is indicutive that there was no infection ortlle Sinus. Additionally, ifpl<.lintifrs sinusitis involved a dental infection that spread to the maxillary sinus, the area of infection would have been seen only on the left side, however, the CT and thc record revealed inflamation on both sides. Dr. Sneider concluded that illS an ImpOSSIbilityfor an infection to have spread II-omthe left SIde SlI1l1S the right side of the face as there is no to ~lIl,ltol1'1ical connection beh·vecll the sinuses on the left and the right. Dr. Sneider concludes that Dr. Gtess' treatm ent 0 r the p lalntitT did not prox imJtc1y cause the plaintiff's claimed Inj uries. Rased upon the foregoing, it has been established prima facie that the moving Etess defendants did not depart from good and accepted standards of dental care and treatment, that they provided proper in!onlled consent to the plainti IT,and they did not proximately cause thc injunes claimed hy the plainti IT. To rebut a prima [lcie showing of entitlement to an order granting summary judgment by the defcndant. Ihe plaintifT must demonstrate the cxistence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice. and contallling an opinion that the defendant's acts or 0111iSSlOIlS were a competent-produclIlg C-ilUSC- the injuries of lhe pIainti fr (see. Lifshit;, v Beth Israel M ed. 0 f Ctr-};iug:-i HighwllY DiI, .. 7 J\D3d 759. 776 NYS2d 907 [2d Dept 2004-1; Donwnul;,ki v Glen COI'e OB/GYN As.we.\' .. 242 AD2d 282. 660 NYS2d 739 [2d Dept 1997]). "Summmy judgment is 110tappropriate in a medical lllalpnlCtlce action where the pal1ics adduce connicting medical expert opinions. Such crcclibihty issues ellll on ly he resolved hy a jury"' (BengstoJ1 I' WllJ1g, 41 1\D3d (l2S, 839 NYS2d 159 rld Dept lOO]]). [* 10] Drago \' Ftess lmkx No. 07-lOSn PagL' No. 10 In opposing this application. The plaintilThas submiued. inter alia, the affinnations ofThomus W. l\'landers. D.D-S.: Richard L",chtcnbcrg. M.D.: Michael S. Morris. M.D.; the arridavils or Carol Drago: as wdl as numerous unccnillcu medical records and literature. Bascd upon.l revievv' of the plaintiffs submisslOIls, it IS dctel"llll11CdthaI the pluintiff's experts offer oplillons with regard 10 the many alleged departures from the standards of care by Dr. Ftcss ;md proXll1l,-llc calise oflhc alleged injuDcs to plaintifls. Thus, triahle issues of Illct arc presented which warrant denial ofdek:lldants' motIon for sUlllmary Judgmclll. TIIOMAS W. MANDERS, D.D.S. The plamtilTs expert, Thomas \N. Manders, D.D.S. affinns that he is licensed 10 practice dentistry ill New York and Connecticut, and that he specializes in Endodontlcs. Dr. Manders set forth the records ,lIld matenals which he reviewed and staled his 0pll1lOnS within a reasonable degree of medical certainty. Dr. Manders set forth the dates that Dr. bess allegedly departed from the dental standard of care from November 24,2003 through .January 6,2006 Dr. Manders opined that Dr. Etess deparled li·om thc standard of care as he llllsscd a root c<llwl at tooth #14; lllilcd to incise and drain a penapical abscess, failed to consider the source of ill fcction lilvolving tooth -# 14, and prescribed an ineffective antibiotic on March 18, 2005; between March 2005 and October 2005, Dr. Etess inappropriately treated the periapical abscess at tooth # 14 permitting it to spread, resulting in erosion mto the palate orthe mouth, causing a fistula and thin bone of tile maxillary sinus and infection into the maxillary sinus; failed to trace the fistula to the apex of the tooth and dram it, failed to perform scaling. or lITIgating of the fistula; failed to timely perfoml an apicoectomy on December 1 2005; inappropriately prescribed a high dose of steroid medication; failed to consider or rule out that the lIlfcction lraveled to the maxillary sinus; failed to timely refer Ms. Drago to an ENT specialist on December 17.2005; and falled to rcmove tooth -# 14 penllittillg the migration of infection inlo the sinus and oral cavity on Deccmhcr 27,2005, Janu,lry 3,2006 and January 6, 2006. 0 Dr. Manders continued that on March 22, 2005, Dr. Francis noted redness and s\-velllllg in the ~lrea of tooth ;t 14 and prescribed an anlibiotic. Monlhs later in November 2005, Ms. Drago experienced a foul taSle in her Illouth, which he stated, is consistent with a chronic abscess. Dr. Manders then 0plllcd that on December 1,2005, Dr. Etess noted a draining fistula (at tooth # 14) but failed 10 trace the llstula to the SOU1T·l' of the infection, which was the apex of the root canal. He continued that Dr. Etess thcn I~lilcd to do. scaling and root planll1g, or Irrigation of thc apex or Ihe root and Ihe fistula after he removed the infcction via incision and drainage. Then, he stated. on December 16, 2005, Dr. Etess failed to administer an appropriate antibiotic before he perronlled the apicoectomy. Dr. Manders continued that the fourth root of the tooth, the mesial buccal roOI, sits within the maxillary. und was allowcd to proliferate and spread into the maxillary cavity. Because Ms. Drago Celt bllrning in her eyes ~lIltinose, illS est~lblished that there was a communication hetwcellthc root anu the m<\.xlilary SlIlLlS. He thcn continued that she should have been treated with Clindamyein instcud oC13iaxin, which arc both antibiotICS, hut docs not 0Pll1C that lilc Bwxll1 was not effective and that the alleged organism whIch was being trealed was nut senSitIve to Blaxin. She was seen again by Dr. Etess on December 19,2005 and on December 23, 20()S, at which time shc complaincd of pain and numbness on the side of her face. Dr. Manders 0pllled that thc pain and numbness should have cleared by the third or founh post operative day. Ms. Drago's lasl Visit with Dr. [tess was on January I:l, lOOG. Dr. Manders opined that because Dr. Etess did not refer Ms. Drago to an ENT specialist. it was a devi<ltion from the standard of earc. Dr. Manders continued that on January 18, 200(), Dr. [* 11] D['ago v Etes~ No. 07-1Ol\17 Pag..: No. II [nul'x Bcn-Moha ordered a CT scan of the SlIlllS due to an episode of dizziness Manders stated that the CT scan was consistent with slIlusitis_ and due to pain in her mouth. Dr. MICHAEL S MORRIS, M D Plall1tilTs expert, Michael S Morris, M.D .. avers that he is licensed to pnlCtil'c medicine in M~lrylalld, Distnct of Columbia. and Dclawan:::. and specializes in otolaryngology medicine. Dr. Morris set forth lhe 11'1aterialsand records which he reviewed and opined with a reasonable degree of medical cCliainty that Carol Drago suffered an odontogenic inlection originating li'om an abscess located III the maxillary first molar tooth whIch then IIlvolved the left maxillary sinus. while under the care of Dr. Etcss. He opined Ihat the Caldwell- Luc proccdure performed by Dr. Grosso was done 10 remove the diseased tissue in the lell parana~al SlllllSCSwhich becamc discasetl as a result of the odontogenic infection. He stated that an odontogenic ll1feetionll1 the maxillofacial region is one whose primary cause is dentalll1 ongin, such as periodontal and peri-apical infections. Dr Morris set fOrlh the dates and events which he opincd were departures from the standard o1'c;)rc hy Dr. Etess. He stated that Ms. Drago had a chronic ahscess and draining fistu13 which was diagnosed by Dr. Fn.\IlCISin Novembcr 2005, whIch was directly related to, and a continuation of an untrcated "pen absccss" that Dr. Eless diagnoscd on March 1:),2005. Significanlly, stated Dr. Morris, on December 1,2005, Dr. Etess agalll missed the opporlullity to provide timely and appropnatc treatment by perf0n11ing an apicoectomy to remove the source oflilfection, and then waitcd fifteen days to pcrfonn the apIcoectomy. allowing the infection to spread. although he was aware that the infected mesial root was sitting within the maxillmy sinus. Thereafter, Dr. Morris stated that the infection involving the root of the left first maxillary molar had already invaded and infected the left maxillary sinus by December 1,2005. and possibly sooner. It is also Dr. Morris' opinion that on December 1,2005, up to and including the last encounter with Dr. ctess on January 13, 2006. that the acute sinusitis had become chronic because Dr. Etess' treatment \Vas inadequate and required concurrent consultalion with a maxillofacial or otolaryngeal spccialist. Dr Morris asserted hIS disagreement with the st<ltemcnt or Dr Etess's expert, Dr. Seh11lcdcr, that the operative report and the pathology report did not show eVidence of an 111::ctlOn, or that infection was present n R:llher, Morris asserts that Ms. Drago had been treated with antihiotics prior 10 the surgery, He continucd that Ms. Drago's medical record~ uo not indicate that she had any allergies and that the pn.::SCllCC of cosinophils ill the repol1 of the Calchvdl-Luc surgery, indicative of allergies, could be triggered by asthma ,,,hich Ms. Drago statcd she had. and that it does not nccessanly mcan that shc had allergics_ RICIIARD LECIITENBERG. M.D. Richard Lechtenberg, M.D. has submittctl a notarized affinnation wherein he set forth thai he is licensed 10 practice medicine In New York. New Jersey, anu Maryland and specialIzes il1llcurology. lIe set forth the n::corLls and materials which he reviewed and opined with a rcason:lblc degree oflllcdical ccrtamty that :15 ~I n.:sull urlhe nc:gilgen! care and tre:l!menl by the defendants Etess anu Francis, that Ms, Dt-ago sustained a Illrlll ortrigerninal neuralgli.l il1volving several branches ol'the nervc, manifested by len-Sided 1~ICI~llnervc pain. krt sided upperjaw tooth pam and scnsitlvity, left-Sided lilcJaI Illusele w..::akncss, and muscle tIcs/spasms. Ik continued that the trigeminal rhizotomy performed by Dr. Mitchell E. LeVine was perlonncd 11lan attcmpt to allcviate some ofthc left-sided facial and oral symptoms Ms. Drago experienced aftcr conscl\'alivc treatment did not help. [* 12] Drago \' EIL'SS lnl.k-x No. 07-10827 Pag<.:No. )2 Dr. Lechtenberg stated that [he nerve can bo::come damaged or injured as a result of an infecled tooth. sinus in1Cctions, shingks, pOSI herpetIc neuralgia. multiple sclerosis, tumors, or <in abnormal vein or artery that compresses the nerve_ )nlla1l1mation and infection oCllle sinuses or tooth. irnW<.lSIVCand persistent. wlil cause;1 dderiorutil)I1 of tile protective sheath ol'lhe nerVI.;:,11ldsend abnormal messages along thaI nerve. and CIUSC pain Dr. Lechtenberg stated that based upon his rcvic\v orthe records and tile anirmations of Dr. \!landers and Dr. Morns. that Ms. Drago suffered from a sinus Jnd tooth lllrection involvmg the lell side for a signilicant period of lime. Dr. Lechtenberg continued that the plaintiffs complaints orlell-sided check. eye. and looth pain. and lell lip llumbness and pain, became pronounced in December 2005. Based upon the foregoing, plaintiffs experts have dClllonstmted Ihe existence of a Iriable issue of fact by subrllltting expert evidence attesting to a deviation or departure from aeeephxl pmeticc, and containing an opinion thut the dcfcmhlllts' acts or omIssions were a compelent-producing cause orthe injuries oCthe plain!ICe That part oftbe defendants' application with regard to CPLR 214-a has been rendered moot by plaintiffs' Bill of Particulars, confinncd Jt1 t!lelr Affinnation in Opposition, that they do not allege thal!he defendants Jeffrey M. Etess and Jeffrey M. Etess. D.M.D., P.c., perfonned any negligent dental care and Ireatment prior to March 8. 2005, well within the statutory two years and six months limitation of lime applicable herc. Accordingly, Judgment dismissing motion (002) by .Jeffrey M. Bless, and Jcffrey M. Etess, D.M.D., P.C., for sumnlHry the complamt as asserted against them is denied. j 1 /11 DatedJ1.CBf!£;e tXg ;(fjI~. ----------------" FINAL DISPOSITION , ' '/d ~--2-'S ~~L~-- .. x . '.. ,I NO~'\j-FINAL D1SPOS nON \ \. /.

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