Tolbert v Rioseco

[*1] Tolbert v Rioseco 2012 NY Slip Op 52227(U) Decided on December 7, 2012 City Court Of Mount Vernon Seiden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2012
City Court of Mount Vernon

Arnee Tolbert, Plaintiff

against

Dr. Robert Rioseco c/o The Center for Cosmetic Dentistry, Defendant.



0746-12



Montgomery Delaney, Esq.

Attorney for Plaintiff

277 Tarrytown Road

White Plains, New York 10607

Westermann, Sheehy, Keenan

Samaan & Aydelott, LLP

Timothy M. Smith

Attorneys for Defendant

222 Bloomingdale Road, Suite 305

White Plains, New York 10605

Adam Seiden, J.

Plaintiff brought this proceeding to recover five thousand dollars ($5,000.00)

alleging "damage caused to a person" and a "failure to provide goods paid for". Plaintiff

stated that she went to defendant to provide four (4) porcelain crowns on implants put

in her mouth by another dentist some six to eight months prior. Plaintiff alleged that

defendant agreed to do this after his examination of her mouth. Plaintiff financed the

work to be done through Chase Bank health advance.

Plaintiff further alleges that when she came home after defendant did a

tangential root canal and prep for a temporary bridge and crowns she was

uncomfortable with the service provided. Defendant alleges that plaintiff yelled at him [*2]

in front of staff and other patients, that the bridge was uncomfortable and the bite was

wrong. Plaintiff went to another dentist and wrote letters for defendant to cease all

work.

Defendant stated that he had the crowns fabricated by an outside lab and that

any uncomfortable feelings were caused by the prior dentist not putting the implants in

the optimal places.

Plaintiff stated that Chase Bank paid the defendant eight thousand five hundred

and fifty eight dollars and sixty one cents ($8,558.61) and he owes her six thousand

four hundred and forty one dollars and thirty nine cents ($6,441.39) after deduction for

the services rendered appropriately. Plaintiff states that the crowns produced by

defendant were not porcelain as required and therefore she need not pay for them.

After hearing the testimony of the parties, judging their credibility and after

reviewing the exhibits submitted, I find for defendant. The claim is dismissed. It is very

difficult to judge the basis for plaintiff's claim. Her arguments against the temporaries

sound in malpractice not contract. Her failure to produce expert testimony on her "injury

to a person claim" is fatal. See Bryan v. Staten Island University Hospital 54 AD 3rd 793

(2nd Dept 2008). The same requirement of expert testimony applies to a claim brought

in small claims court. See Train v. Erfanian 34 Misc 3rd 147(A) (App Term 9th & 10th

Districts, 2012).

With regard to the claim for a failure to provide goods paid for, the plaintiff has

failed to prove by a preponderance of the evidence that the defendant gave her a

specific promise to give her a definitive result. There appears to have been no [*3]

contractual meeting of the minds. See Clarke v. Mikael 238 AD2d 538 (2nd Dept 1997)

The above meets this Court's statutory charge to do substantial justice between the parties.

The above constitutes the Decision and Order of the Court.

Dated: Mount Vernon, New York

December 7, 2012

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon