Kirschner v Fulop-Goodling

[*1] Kirschner v Fulop-Goodling 2016 NY Slip Op 50175(U) Decided on February 18, 2016 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2016
Supreme Court, Nassau County

Noah R. Kirschner, Plaintiff,

against

Jacqueline Fulop-Goodling, D.M.D. and Jacqueline Fulop-Goodling, D.M.D. d/b/a Woodbury Pediatric and Orthodontic Dental Care, Defendants.



010667/14



Albert W. Chianese, Esq.

Albert W. Chianese & Associates, P.C.

Attorneys for Plaintiff

100 Merrick Road, Suite 103E

Rockville Centre, NY 11570

Spiegel Leffler PLLC

Attorneys for Defendants

135 West 29th Street, Suite 801

New York, NY 10001
Randy Sue Marber, J.

Upon the foregoing papers, the motion by the Defendants, Jacqueline Fulop-Goodling, D.M.D. and Jacqueline Fulop-Goodling, D.M.D. d/b/a Woodbury Pediatric and Orthodontic Dental Care, seeking an order, pursuant to CPLR § 3212, granting them summary judgment dismissing the Complaint, is decided as hereinafter provided.

This is an action sounding in orthodontic malpractice involving the treatment of the Plaintiff, Noah R. Kirschner (hereafter "Kirschner") with Invisalign and traditional braces, [*2]which the Plaintiff claims has caused root resorption in teeth No.s 7-9. The Plaintiff also claims that the Defendants herein, Jacqueline Fulop-Goodling, D.M.D. ("Dr. Fulop-Goodling") and Jacqueline Fulop-Goodling, D.M.D. d/b/a Woodbury Pediatric and Orthodontic Dental Care ("Woodbury Pediatric") failed to obtain adequate informed consent and claims that the treatment at issue failed to comport with the standards of good and accepted dental care, thereby causing his injuries.

At his Examination Before Trial ("EBT"), the Plaintiff testified that approximately one month before he commenced treatment with the Defendant, Dr. Fulop-Goodling, he saw (non-party) Dr. David Ostreicher, albeit only once, for the purpose of getting his teeth straightened and the gaps in his front, upper and lower teeth closed. (See Notice of Motion, Exhibit "D" [Kirschner Tr.], pp. 36-38) Although the Plaintiff could not recall whether he completed any forms on his sole visit with Dr. Ostreicher, he testified that Dr. Ostreicher took x-rays (Id. at p. 41) and discussed with him his options. The Plaintiff testified that he had a discussion with Dr. Ostreicher wherein Dr. Ostreicher told him that he was "a good candidate" to having "the gaps closed and...[getting] a new smile". (Id. at pp. 38-39) The Plaintiff testified that Dr. Ostreicher explained that "[i]t was up to [the Plaintiff] if [he] wanted to have Invisalign or traditional braces". (Id. at p. 39) The Plaintiff did not recall whether Dr. Ostreicher talked to him about the benefits of Invisalign or traditional braces, or whether one would be better than the other. (Id. at p. 40) He stated, however, that given his age,[FN1] he was personally very interested in Invisalign and that Dr. Ostreicher stated that Invisalign would work and the process would take about eighteen months, and would cost approximately $5,000. (Id. at pp. 40-41, 43) In addition, the Plaintiff testified that prior to seeing Dr. Ostreicher, he, personally, had done research on Invisalign, going to the Invisalign website. (Id. at p. 41) He stated that, based upon his research, he understood the Invisalign process to mean that there would be a tray put in his mouth every two weeks which would gradually move his teeth. (Id. at p. 42)

The Plaintiff explained that he found the Defendant, Dr. Fulop-Goodling, through the Invisalign website where she was referenced as "an elite provider". (Id. at p. 55) He explained that on his first visit with the Defendant, on March 3, 2009 (Id. at p. 90) he told her that he wanted the spaces between his teeth closed. (Id. at pp. 56-57) He also explained to the Defendant that he also needed an implant in the place of a congenitally missing tooth in the upper left side of his mouth. (Id. at pp. 57-58) He stated that at his first visit with the Defendant, she took x-rays and in discussing those results and her plan of treatment, she told him that "she would create enough space for an implant to go there". (Id. at pp. 59-60) When asked about what she further told him at that first visit, the Plaintiff testified as follows:

I believe I asked her what would be best and she told me what the best treatment plan would be to have a symmetrical smile.***She told me that we would need to remove a tooth in my upper right to be able to shift all the teeth over to have space for the implant and to create symmetry (Id. at p. 61).[FN2]

The Plaintiff testified that the Defendant stated that he "could start with Invisalign but [that he] would have to end with traditional brackets to finish moving the teeth for the last six months". (Id. at p. 62) He testified that the Defendant stated "the whole process would be between two and two-and-a-half years" (Id. at p. 62) and that the treatment would cost approximately $7,000 which would include all orthodontic work including the Invisalign and the traditional braces. (Id. at pp. 90-91) He stated that he informed the Defendant that he had also visited another orthodontist (Dr. Ostreicher) but that he did not tell the Defendant what he, Dr. Ostreicher, had recommended. (Id. at p. 62)

When asked whether the Defendant had discussed the actual Invisalign process with him on that first visit, the Plaintiff testified "I don't remember if we did or we didn't". (Id. at p. 63) However, the Plaintiff also testified that he specifically asked the Defendant about the Invisalign process and whether it would work; he stated that she responded as follows:

She told me a story that it's like someone trying to lose weight but they don't eat right. She said, if you don't eat right, you'll never lose weight. The same thing is true with Invisalign. If you don't wear your aligners like you are supposed to, your teeth will never go where they are supposed to. As long as you wear them, they'll go where they are supposed to go. (Id. at p. 64)

The Plaintiff could not recall who discussed with him the length of the time each aligner would be worn; he stated that there were several dental assistants in the Defendant's practice and one or more of them may possibly have explained the process and the length of time for wearing the aligners. (Id. at pp. 64-65) Ultimately, the Plaintiff also testified that the Defendant explained to him that he would have to wear the Invisalign aligners at all times, instructing him "[t]o take them out when [he was] eating and then to put them right back in". (Id. at p. 66)

When specifically asked whether the Defendant had discussed any risks with him that are involved in general orthodontic treatment, the Plaintiff testified as follows:

Q: Did [the Defendant] discuss any risks with you that are involved in just orthodontic treatment in general?A: Yes.Q: What risks did she discuss with you?A: She told me that if she moved my teeth too quickly, there is a potential for bone loss.(Id. at pp. 72-73).

The Plaintiff testified that this discussion took place "a few years into treatment". (Id. at p. 73); he could not remember whether at his first visit, the Defendant had any discussion with him about any risks involved with general orthodontic treatment. (Id. at p. 73)

Notably, the Plaintiff testified that the Defendant never discussed with him that he might have jaw discomfort or develop problems in the joint commonly known as the TMJ joint as part of the orthodontic process; or that the orthodontic appliances might irritate or damage his gums or oral tissue; or that the treatment time could be longer than originally estimated; or that restorative dental treatment, such as bonding or crowns, might also be necessary after the [*3]orthodontic process; or any alternatives to orthodontic treatment or any risks involved specifically in the Invisalign process. (Id. at pp. 78-80) The Plaintiff added that the Defendant also never discussed with him that the health of the bone or his gums which support the teeth may be impaired with the Invisalign process, or that the length of the roots may be shortened through the Invisalign process. (Id. at pp. 81, 83) He testified that prior to starting his orthodontic treatment, the Defendant did not discuss with him certain risks including the risk of root resorption. (Id. at p. 74) Indeed, he also confirmed that nobody else at the Defendant's practice ever had any discussions with him regarding the risks involved in the traditional orthodontic treatment or traditional braces or with Invisalign. (Id. at p. 83)

The Plaintiff testified that he was never given any type of written treatment plan by the Defendant. (Id. at p. 92) He could not recall being given any forms or booklets or anything to take home and review on his first visit. (Id. at p. 99)

Despite the foregoing, the Plaintiff also testified that "someone...may have been [the Defendant]" told him that he might have tenderness after he switched to new aligners because "it takes a couple of days for your teeth to adjust and then there might be discomfort during that time". (Id. at pp. 80-81) He also testified that the Defendant discussed with him the possibility that he would need orthodontic treatment or assorted treatment after the Invisalign process — specifically that "[s]he felt that the tooth with the cap on it would not make it through orthodontic treatment...because she felt it was a baby tooth". (Id. at pp. 81-82) He stated that the Defendant explained to him that he would need another implant there if that tooth did not make it through the process. (Id. at p. 83)

Ultimately, the Plaintiff testified that there was no part of the treatment plan suggestions made by the Defendant that he did not agree with. (Id. at p. 119) He testified as follows:

Q: When you left that day after that first consult, what was your understanding of how you left off with [the defendant]? Did you tell her you were agreeing to the treatment, you were going to think about it, something else?A: I initially said that I was going to think about it. I went out to my car, I turned around and I gave them a deposit, I felt very comfortable.(Id. at p. 93)

The Plaintiff stated that he returned to the Defendant on March 6, 2009 at which appointment he signed, inter alia, a document with the heading "Potential Risks and Limitations of Orthodontics Treatment" and an "Informed Consent and Agreement for the Invisalign Patient". (Id. at p. 94-98; Notice of Motion, Exhibit "H") He testified that his recollection of the second visit was "having trays made up where they stick them in your mouth and take impressions of your mouth". (Id. at p. 98) He added that his understanding of what would happen after his second visit was that they would call him when the Invisalign trays came in. (Id. at p. 99) He stated that, six to eight weeks after his second visit, he returned to the office after having received the phone call from the Defendant that the trays had come in. (Id. at pp. 99-100)

The Plaintiff testified that on this third visit he treated with "Dr. Josh" from the Defendant, Woodbury Pediatric, who gave him "more than one" aligner (the Plaintiff did not remember how many specifically). (Id. at p. 101) The Plaintiff testified that at this time, he also received a "welcome kit" which included a pamphlet on how to care for his teeth and what to avoid eating while in the aligners. (Id. at pp. 105-106) The Plaintiff testified that he read the pamphlet which instructed him "to floss, to brush regularly, to make sure the aligners were clean, to not have chewing gum or popcorn or food like that, it could get caught between [his] [*4]teeth". (Id. at p. 106)

"Shortly after" this visit (Id. at p. 102), the Plaintiff testified that he followed up, in person (Id. at p. 103), with the Defendant to clarify the treatment plan, at which point, after examination of his mouth, (Id. at p. 103) she told him "it was a mistake and that they have to order [him] a new set of aligners [because] [s]he didn't account for taking out [a] tooth". (Id. at p. 102) He stated that she advised him to continue wearing the tray that he was wearing at that time and to "wait another six to eight weeks for the new course correction aligners to come in". (Id. at p. 102) It was his understanding that he would need to return in six weeks. (Id. at p. 108)

The Plaintiff testified that he wore the Invisalign aligners for two and a half years. (Id. at p. 108) With respect to his Invisalign treatment, the Plaintiff testified as follows:

A: Sure. Some appointments were very routine but what was happening was the Invisalign retainers weren't fitting properly after three or four trays into the treatment, she would have to do more course corrections and order me new aligners. That happened, I believe, two more times where she had to order a whole new set of aligners and it took another six to eight weeks each time.Q: When you say that they were not fitting properly, what do you mean by that?A: The first tray in a new set would fit fine. The second tray would fit fine. The third tray, there would start to be a little space in the back and I made her aware of it and she said, it's okay, we will just see how it goes. Then a couple of trays after that, by the time four and five came, I wouldn't even be able to get the new tray on my mouth.(Id. at p. 109)

The Plaintiff testified that there were three course corrections. (Id. at p. 113) However, he stated that "[t]he goal was always the same, to have the same results of creating space for an implant...and to close all the spaces". (Id. at p. 119) He testified that during the course of the Invisalign treatment, he "could see that [his] teeth were moving" and that this was a visible process. (Id. at p. 120) He also confirmed that at no point during the Invisalign treatment did he ever express to the Defendant that he was not happy with the way that the Invisalign treatment was working. (Id. at p. 120) Nor did he ever discuss with her why additional time was needed for the Invisalign treatment. (Id. at p. 121)

The Plaintiff stated that approximately two and a half years into the treatment, he switched form the Invisalign treatment to the traditional braces. (Id. at p. 121) He stated that at that point, he had a conversation with the Defendant as to the status of his treatment. He testified as follows:

What happened was that, once again, the aligners were out of alignment and they would not fit properly. So instead of doing another cross (sic) correction she told me, she said, no, this is just going to keep on happening. If I put you in traditional brackets I could get you done quicker and I can have more control over where we go with your teeth. (Id. at pp. 121-122)

The Plaintiff was also questioned about his understanding from the initial treatment plan of why he was going to switch to the traditional braces. He stated as follows:

[The defendant] explained to me that Invisalign could only take his teeth so far and that the last little bit of movement that is going to be needed for an implant will need to be done with traditional bracket orthodontics....It was explained to me that [the traditional brackets] would just be for the implant to give them enough space to put it in. (Id. at pp. 122-123)

The Plaintiff stated that at this point, during the transfer from Invisalign to traditional braces, he started treatment with (non-party) Dr. Barbara Jurim to whom he had been referred by [*5]Dr. Fulop-Goodling, for the purpose of doing the implant. (Id. at pp. 68-69, 124-126) He testified:

What she [Dr. Jurim] did, she replaced the cap that was on one of my front right upper teeth with a size that would be appropriate to match the implant. She put a temporary cap on with permanent glue....She said that it was a small adult tooth and that she doesn't foresee any problem with losing it. (Id. at pp. 134-135)

The Plaintiff testified that he stopped treating with Dr. Jurim in early 2014 (Id. at p. 135), but that during this time, she discussed his orthodontic treatment with him, opining as follows:

She [Dr. Jurim] couldn't understand why it was taking so long to finish the orthodontic work and she would just tell me she is going to call [the defendant] and speak to her...I don't know [if she ever called the defendant]. Sometimes she would ask me to pass along the message to have [the defendant] call her [Dr. Jurim]. (Id. at pp. 136-137)

The Plaintiff also testified that at the end of his time with Dr. Jurim, he had another conversation with her with regard to the orthodontic treatment. He testified as follows:

She [Dr. Jurim] was very upset. She said that I needed to go for a second opinion because it was taking way too long for orthodontics. It was already at about the five year mark total and she said it is not normal to be in orthodontics this long, that you need to go for a second opinion and she [the defendant] has ground down your teeth too many times. She said, I have photographs of the teeth and I can see the amount of times that she actually ground down and changed the shape of your teeth and that's not the right way to do things.***I told her I didn't want to go for a second opinion because I have spent so much money on orthodontics with [the defendant] that she kept telling me I was nearing the end and I didn't want to make a transition and spend more money at that point.***She said that my teeth have actually regressed. That [the defendant] had my teeth in a pretty good spot and then she actually moved them back and created more work, basically. So, in her opinion, she [the defendant] was doing unnecessary revisions on my teeth. (Id. at pp. 139-141)

Following this conversation with Dr. Jurim, the Plaintiff testified that he had a half an hour conversation with the Defendant wherein she assured him that he "was in good hands" and that she hadn't "ground down more than [she] need[ed]" and that "this is standard protocol". (Id. at pp. 141-142) The Plaintiff testified that he "left it, trusting that [he] was still in good hands and [he] made the decision to stay with [the defendant]". (Id. at pp. 141-142)

The Plaintiff also testified that during the course of treatment, Dr. Jurim also referred him to see Dr. Jurman because he was experiencing "symptoms of a blocked salivary gland", namely puffiness in the right rear of his mouth. (Id. at pp. 149- 150) The Plaintiff testified that he saw Dr. Jurman twice and that those examinations involved him taking an x-ray of the mouth, but ultimately concluding "that it was something on the skin and nothing to do with the mouth". (Id. at pp. 150-151) The Plaintiff stated that Dr. Jurman prescribed him an antibiotic. (Id. at p. 151) He stated that Dr. Jurman never said that this issue with the skin was somehow related to the orthodontic treatment. (Id. at p. 151) Nor did Dr. Jurman ever comment on the orthodontic treatment. (Id. at p. 151-152)

The Plaintiff testified that from this point forward until he stopped treating with the [*6]Defendant, "it was pretty straight forward" so that the Defendant, during these final appointments, "just continued to adjust the bracket and move [his] teeth". (Id. at pp. 147-148) The Plaintiff testified that during this time, the spaces on the bottom front teeth had closed. (Id. at p. 148)

Once he concluded his treatment with the Defendant, in February 2015, the Plaintiff commenced treatment with Dr. Perry Iacovetti, to whom he had been referred by Dr. Jurman. (Id. at pp. 155-156) He stated that he told Dr. Iacovetti:

At that time I had already been aware of the root resorption and I explained to him the situation with that and he said he would examine me and take a look at my records (Id. at 156).[FN3]

The Plaintiff testified that from the time that he has stopped treating with the Defendant, he has since seen Dr. Iacovetti seven or eight times and plans on continuing the course of appointments with him. (Id. at p. 162) He testified that Dr. Iacovetti has stated the following: The goal, my front upper are all tied together. [Dr. Iacovetti] said that because the roots are so small that we tie four teeth together, they will become stronger. He doesn't want them to move so that hopefully, the hope is that bone could somewhat grow around the small roots and with a very heavy metal retainer that I would wear permanently, that I may be able to give me my teeth for another five to ten years, if that works. *** He said that at this point we can't move anything else on the upper. It is what it is. We just have to make sure that the front teeth don't move, we need to stabilize them. (Id. at pp. 163, 166)

The Plaintiff confirmed that Dr. Iacovetti has neither discussed percentage of bone loss with him, nor has he given him percentages regarding the chance of losing, individually, each of the three front teeth. (Id. at p. 164) He also stated that Dr. Iacovetti has not indicated that there was any issue with root resorption with respect to the lower teeth. (Id. at p. 165) Nor has Dr. Iacovetti criticized the Invisalign treatment. (Id. at p. 168)

The Plaintiff testified that he has been wearing the traditional braces for about three and a half years. (Id. at p. 127) He also confirmed that he has not lost any front teeth. (Id. at p. 164)

The Plaintiff also testified that from July 2014 (when he stopped treating with the Defendant) through February 2015 (when he started seeing Dr. Iacovetti), he also saw Dr. Myron Gurman (an orthodontist) (Id. at pp. 48-49), albeit only once at which appointment Dr. Gurman told him that his mouth and gums were inflamed and that he needed to have the elastics that were placed in his mouth by the Defendant, Dr. Fulop-Goodling, removed so as to let the gums heal and stop bleeding. The Plaintiff stated that Dr. Gurman told him that he needed "to go passive" which he understood to mean that everything needed to be removed from his teeth so as to not let there be any force on his teeth. (Id. at pp. 50-52)

The Plaintiff stated that he continues to see Dr. Cekada as well as a new orthodontist, Dr. Iacovetti. (Id. at pp. 47-48).

In bringing this action, the Plaintiff asserts two causes of action: orthodontic malpractice and lack of informed consent. (See copy of Complaint attached to the Notice of Motion as [*7]Exhibit "A")

With respect to his first claim for orthodontic malpractice, the Plaintiff contends that the Defendants ignored his complaints, signs and symptoms of root resorption of his teeth during his orthodontic procedure causing the need for him to have implants because his improper orthodontic hardware was in his mouth for an extended period of time. (Id. at ¶ 9 [a]) In addition, the Plaintiff contends that the Defendants' diagnosis was erroneous and incorrect in that they failed to diagnose his root resorption during the orthodontic procedure to adequately correct his orthodontic condition. (Id., ¶ 9 [b])

With respect to his second cause of action for lack of informed consent, the Plaintiff claims that the Defendants failed to advise him of the alternatives and benefits to the professional treatment — which was non emergent and elective in nature — and that the Defendant failed to advise him of the reasonably foreseeable risks and complications involved as reasonable dental practitioners would have disclosed, in such a manner permitting him (the Plaintiff) to make a knowledgeable evaluation concerning said treatment and in failing to provide him with the appropriate information so as to allow him to give an informed consent to said procedures. The Plaintiff claims that he was injured by the Defendants in that had he been fully informed, he or a reasonably prudent person in his position would not have undergone the treatment, procedure, and surgery and the failure of the Defendant to properly inform him herein has caused him to sustain a severe personal injury. (Id., at ¶¶ 11-13)

Upon the instant motion, the Defendants seek summary judgment dismissal of said claims. Specifically, the Defendants assert five principal bases for their entitlement to summary judgment. First, not only was the Plaintiff fully informed of the risks of orthodontic treatment by Dr. David Ostreicher (an orthodontist with whom the Plaintiff had consulted prior to his first visit with Dr. Fulop-Goodling), but Dr. Fulop-Goodling also addressed informed consent as evidenced by the two thorough informed consent forms which he signed in her office prior to starting his treatment. (See Affirmation In Support, ¶ 23) Second, even if the Plaintiff was not advised of all risks that an allegedly reasonable practitioner would disclose under similar circumstances, the Plaintiff has failed to establish that as a reasonable person seeking functional or cosmetic improvement, he would go forward with orthodontic treatment even if advised of every possible risk. (Id., at ¶ 24) Third, any lack of informed consent was not a proximate cause of his injury. (Id., at ¶ 26) Fourth, Dr. Fulop-Goodling comported with all accepted standards of dentistry and orthodontics during her treatment of the Plaintiff and that no actions or inactions on the parts of the Defendants caused the injuries complained of by the Plaintiff. (Id., at ¶ 28) Lastly, the Plaintiff has failed to demonstrate that any alleged injury resulted from a negligently performed procedure. (Id., at ¶ 46)

The law is clear. A party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the moving party has made a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form which establishes the existence of a material issue of fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]) A defendant seeking summary judgment bears the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than merely by pointing out gaps in the plaintiff's case. (Alizio v. Feldman, 82 AD3d 804 [2d Dept. 2011]; Nationwide Prop. Cas. v. [*8]Nestor, 6 AD3d 409, 410 [2d Dept. 2004])

"The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental [or medical] practice, and that such departure was a proximate cause of the plaintiff's injuries". (Sharp v. Weber, 77 AD3d 812, 813 [2d Dept. 2010]; Koi Hou Chan v. Yeung, 66 AD3d 642, 642 [2d Dept. 2009]; Cohen v. Kalman, 54 AD3d 307, 307 [2d Dept. 2008]) "Consequently, on a motion for summary judgment, the defendant [dentist or doctor] has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiff's injuries". (Sharp v. Weber, supra at 814; see also Myers v. Ferrara, 56 AD3d 78, 83 [2d Dept. 2008]; Larsen v. Loychusuk, 55 AD3d 560, 561 [2d Dept. 2008]). To satisfy the burden, a defendant in a dental malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. (Koi Hou Chan v. Yeung, supra at 642; Larsen v. Loychusuk, supra at 561; Roques v. Nobel, 73 AD3d 204, 206 [1st Dept. 2010]). Conclusory statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment. (Cregan v. Sachs, 65 AD3d 101, 108 [1st Dept. 2009])

"The plaintiff may then defeat the motion by submitting proof raising a triable issue of fact as to the element or elements on which the defendant has made its prima facie showing". (Arocho v. D. Kruger, P.A., 110 AD3d 749 [2d Dept. 2013]; Makinen v. Torelli, 106 AD3d 782 [2d Dept. 2013]) "Summary judgment is not appropriate where the parties adduce conflicting medical expert opinions, as such credibility issues can only be resolved by a jury [citations omitted])". (Iulo v. Staten Is. Univ. Hosp., 106 AD3d 696 [2d Dept. 2013]; Shehebar v. Boro Park Obstetrics and Gynecology, P.C., 106 AD3d 715 [2d Dept. 2013])

Ultimately, "[e]stablishing proximate cause in [dental] malpractice cases requires a plaintiff to present sufficient medical evidence from which a reasonable person might conclude that it was more probable than not that the defendant's departure was a substantial factor in causing the plaintiff's injury (citations omitted)". (Semel v Guzman, 84 AD3d 1054 [2d Dept. 2011]) "A plaintiff's evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiff's chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiff's chance of a better outcome or increased [the] injury' ". (Goldberg v. Horowitz, 73 AD3d 691, 694 [2d Dept. 2010], quoting Alicea v. Ligouri, 54 AD3d 784, 786 [2d Dept. 2008])

However, "lack of informed consent is a distinct cause of action which requires proof of facts not contemplated by an action based merely on allegations of negligence". (Jolly v. Russell, 203 AD2d 527, 528 [2d Dept. 1994])

Public Health Law § 2805-d (1) defines lack of informed consent as "the failure of the person providing the professional treatment...to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation." A cause of action premised on a lack of informed consent "is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical...practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a [*9]knowledgeable evaluation' ". (Karlin v. IVF Am., 93 NY2d 282, 292 [1999], quoting Public Health Law § 2805-d [1]) Thus, "[t]o establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury". (Spano v. Bertocci, 299 AD2d 335, 337-338 [2d Dept. 2002] [internal quotation marks omitted]; Khosrova v. Westermann, 109 AD3d 965, 966 [2d Dept. 2013]) Notably, the alleged qualitative insufficiency of the consent must be supported by expert medical testimony. (Davis v. Nassau Ophthalmic Servs., 232 AD2d 358 [2d Dept. 1996])

In support of their motion herein, the Defendants submit, inter alia, the following: (1) the two-page "Potential Risks and Limitations of Orthodontics Treatment" from Jacqueline I. Fulop, DMD, signed and executed by the Plaintiff on March 6, 2009; (2) the four-page "Informed Consent and Agreement for the Invisalign Patient", signed and executed by the Plaintiff on March 6, 2009; (3) the medical records from "Woodbury Pediatric and Orthodontic Dental Care/Dr. Jacqueline Fulop-Goodling, Orthodontist"; (4) the five-page "Tx [Treatment] Card Report Of Kirschener, Noah"; and, (5) the expert affirmation of Adam M. Goodman, D.M.D., who is licensed to practice dentistry in the State of New York and who has used Invisalign technology since 1999 and was hired by Invisalign to teach other orthodontists around the country about this technique, having presented Invisalign lectures at the International Invisalign Summit and the Greater New York Dental Meeting. (See Notice of Motion, Exhibit I [Goodman Affirmation], ¶ 1)

Based upon the foregoing, this Court finds that the Defendants have met their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing both causes of action; to wit, to recover damages for dental malpractice as well as the cause of action for lack of informed consent.

Critically, the Defendant's expert, Dr. Goodman, having reviewed the Plaintiff's dental records, the legal documents involved with this litigation, the report of the independent dental examination of the Plaintiff by Peter Blauzvern, DDS, and the transcripts of the deposition testimony taken in this case, opines to a reasonable degree of dental and orthodontic certainty that the treatment performed by Dr. Fulop-Goodling comported with the standards of care in dentistry and orthodontics, and that no actions or inactions on the parts of the Defendants caused the injuries complained of by the Plaintiff. (Id., at ¶ 2-4)

Indeed, in his Affirmation, Dr. Goodman methodically spells out that each and every decision by the Defendants fell within the parameters of good and accepted dental practice and that their dental care and treatment of the Plaintiff was not the proximate cause of his claimed injuries.

Ultimately, Dr. Goodman concludes, in pertinent part, as follows:

***8. ...I can state to a reasonable degree of dental certainty that the standard of care for informed consent was met. The forms and Dr. Fulop-Goodling's discussion also specifically detail the risks of root resorption, loss of tooth vitality, and the possibility that treatment may take longer than estimated.9. The general orthodontic consent form indicates that root resorption is not a disadvantage where the remainder of the dentition is otherwise healthy. It is my opinion that this statement fairly reflects the current scientific understanding of root resorption: it is unpredictable, and there has not been any definitive causal link between orthodontics and root resorption. Root resorption can even occur absent any orthodontic treatment whatsoever. It is my opinion that plaintiff cannot show a causal link between the orthodontic treatment he received and the root resorption he appears to have suffered.10. It is also my opinion that plaintiff was fully informed that his treatment could take longer than originally estimated. So long as the quality of care meets relevant standards, which Dr. Fulop-Goodling's care did, the amount of time actually spent in orthodontics is an irrelevant measure of success. Though it may appear that the plaintiff here spent a long time in orthodontics, it is especially important to note in this case is that plaintiff's treatment plan changed throughout the course of treatment, increasing the length of treatment, but not resulting in any decline in the quality of care. ***11. It is my opinion that, based on the available evidence, plaintiff was informed of the reasonably foreseeable risks, benefits, and alternatives to treatment that a reasonable practitioner would disclose. I am also of the opinion that no reasonable person in plaintiff's position, even if advised of every possible risk, would decline treatment. A reasonable person seeking functional or cosmetic improvement, as plaintiff did, would go forward with orthodontic treatment to attain that goal.***13. Throughout treatment, which proceeded as Dr. Fulop-Goodling expected and within normal limits, clinical exam revealed that plaintiff's oral hygiene remained good, and he experienced no severe gingivitis or bleeding. Thus, there were no clinical symptoms indicating the need to take x-rays. The frequency of mid-treatment x-rays varies according to the practitioner's judgment of the overall condition of the teeth and supporting structures, balanced with a respect for unnecessary exposure to radiation. Many recent studies have raised some concern about possible effects of dental radiation. It is therefore my opinion that Dr. Fulop-Goodling did not need to take additional x-rays in order to monitor root resorption, bone loss, tooth separation, root parallelism, root blunting or any other conditions related to the roots in plaintiff's mouth. She appropriately recognized the need to monitor plaintiff's upper anterior teeth and did routinely monitory these teeth for mobility. She found no mobility outside the scope of routine movement.14. ...Overall, it is my opinion that the number and quality of x-rays taken by Dr. Fulop-Goodling throughout plaintiff's treatment met the standard of care.***16. At each stage of treatment, Dr. Fulop-Goodling used appropriate orthodontic appliances to treat the plaintiff. Invisalign was an appropriate treatment choice to address the original plan to close the spaces in plaintiff's dentition, especially given his age and preference for the aesthetic solution Invisalign provides compared to traditional fixed braces. Invisalign was also appropriate to open a space at #10 to accommodate an implant as requested by plaintiff's general dentist. As this plan progressed, plaintiff's prosthodontist requested additional movements be made, and a discussion was held with the plaintiff regarding using traditional braces to address these movements. The risks, [*10]benefits, and alternatives were the same as those about which plaintiff was advised from the start, and there were no new risks associated with the change in treatment plan. It was sound judgment to switch from Invisalign to traditional braces so as to accomplish all the movements advised by plaintiff's treating practitioners. At all times, the proper and necessary orthodontic appliances were used to adequately correct plaintiff's orthodontic condition.17. The orthodontic hardware used to correct plaintiff's dentition was, as discussed above, not improper, and it was not left in plaintiff's mouth for an extended period of time. As already noted, the treatment plan changed throughout plaintiff's time with Dr. Fulop-Goodling, and extensions in treatment reflected the changing goals of treatment. Additionally, plaintiff failed to have tooth #5 extracted for over one year from the recommendation that he do so. In so delaying, plaintiff prevented his treatment from moving forward, as the Invisalign trays were designed to accommodate and address the space left after extracting tooth #5. Without having the tooth extracted, the trays would not fit, and plaintiff could not move forward with treatment. So, while it may initially appear that plaintiff was in orthodontics for an extended period of time, the year of remaining in a single aligner while waiting for plaintiff to take a necessary step in his treatment must be taken into account.***19. While plaintiff claims that defendants left improper hardware in his mouth for an extended period of time, there is no "correct" amount of time in which to treat an orthodontic patient. Each case is unique to the patient's anatomical reaction to the attempted movements. As noted above, the amount of time actually spent in orthodontics is an irrelevant measure of success so long as the quality of care remains good. It is my opinion to a reasonable degree of orthodontic certainty that plaintiff remained in proper orthodontic hardware for the amount of time that was necessary to accomplish his treatment goals and that plaintiff's noncompliance with the treatment plan led to an extension of his treatment time and the need for additional treatment.20. It was also within the standard of care to place .014 nickel titanium ("NITI") wire in plaintiff's mouth. Plaintiff testified that he did not tell Dr. Fulop-Goodling that his dentist informed him that he had root resorption. Thus, she treated the condition for which plaintiff presented. At the time she placed the .014 NITI, plaintiff was suffering from gingival irritation from the elastics and wire he had in his mouth due to the extended amount of time he had spent in them after failing to make an appointment with Dr. Fulop-Goodling. This condition warranted a change in wire. Additionally, plaintiff's teeth had undergone negative shifting, which needed to be addressed. The .014 NITI, a light wire, allowed plaintiff's teeth to shift back somewhat while not compromising the work that had already been done.***22. Plaintiff's claim that Dr. Fulop-Goodling should have referred him to a more qualified specialist is unfounded. Dr. Fulop-Goodling is a licensed New York dentist, specializing in orthodontics, and was thus competent to perform all the treatment that she did on plaintiff. She is highly experienced in both traditional fixed braces and Invisalign, and is in fact a Top 1% Doctor for Invisalign, indicating the highest level of experience compared to Invisalign providers nationwide. Considering Dr. Fulop-Goodling's [*11]impressive qualifications, there was no need to refer plaintiff to a more qualified specialist.23. It is my opinion, within a reasonable degree of dental and orthodontic certainty, that...there were no departures from accepted standards of care that could have proximately caused the injuries alleged by plaintiff, and informed consent was adequately obtained. I hold all the opinions expressed herein to a reasonable degree of dental and orthodontic certainty.(See Notice of Motion, Exhibit I [Adam Goodman Affirmation])

Taken together with the Defendants' balance of proof, this Court finds that the Defendants have established their prima facie entitlement to judgment as a matter of law as to both claims. Specifically, Dr. Goodman has addressed all of the key allegations advanced by the Plaintiff against the Defendants including the claimed failure to take adequate x-rays, failure to diagnose and treat gingival irritation, failure to use proper orthodontic appliances and improperly leaving orthodontic hardware in the Plaintiff's mouth for an extended period of time, as well as a claim of lack of obtaining informed consent. (See Verified Bill of Particulars, ¶ 3).[FN4]

Moreover, the Defendants' reliance upon, inter alia, the disclosure forms signed and executed by the Plaintiff on March 6, 2009, also establish their entitlement to summary dismissal of the Plaintiffs' second cause of action. It is true that the Plaintiff testified that the Defendant failed to inform him of the issues during a pre-operative discussion with him, including, among other things, that his treatment time could be longer than originally estimated, or any alternatives to orthodontic treatment or any risks involved specifically in the Invisalign process, or the risk of root resorption, supra (cf. Ortaglia v. Scanlon, 35 AD3d 421 [2d Dept. 2006]; Ericson v. Palleschi, 23 AD3d 608 [2d Dept. 2005]). However, this Court cannot overlook, or reconcile the foregoing statements by the Plaintiff with his testimony that there was no part of the treatment plan suggestions made by the Defendant that he did not agree with, or that at the end of his first consultation with the Defendant on March 3, 2009, that he immediately (on the same day) gave them a deposit because he "felt very comfortable", supra. Indeed, taken together with the two disclosure and consent forms signed by the Plaintiff, this Court finds that the Defendants have established their entitlement to judgment as a matter of law with respect to this second cause of action as well.

Specifically, while the mere signing of a consent form does not, by itself, establish the Defendants' entitlement to judgment as a matter of law. (Kozlowski v. Oana, 102 AD3d 751, 753 [2d Dept. 2013]; Wilson—Toby v. Bushkin, 72 AD3d 810, 811 [2d Dept. 2010]; Rezvani v. Somnay, 65 AD3d 537, 538—539 [2d Dept. 2009]), here, it is readily apparent to this Court, based upon a plain and simple reading of the foregoing disclosure forms, the consent forms signed by the Plaintiff were not generic and rather contained details about the process and procedures. (See Notice of Motion, Exhibit "H") Indeed, the disclosure forms also disclose the risks specific to the Invisalign process, or alternatives to the procedures. (Kozlowski v. Oana, supra at 753)

Nor can this Court find the Defendants' expert affidavit to be conclusory in this regard; on the contrary, the expert, Dr. Goodman, avers that the consent form complied with the prevailing standard for such disclosures applicable to reasonable practitioners performing the same kind of surgery. Furthermore, the Defendants have established, through their expert, that, in any event, a reasonably prudent person in the Plaintiff's position would not have declined to undergo the procedure. (Muniz v. Katlowitz, 49 AD3d 511, 513 [2d Dept. 2008]; Haggerty v. Wyeth Ayerst Pharms., 11 AD3d 511, 512—513 [2d Dept. 2004]), and that any lack of informed consent did not proximately cause any injury. (Trabal v. Queens Surgi—Center, 8 AD3d 555 [2d Dept. 2004]; Mondo v. Ellstein, 302 AD2d 437 [2d Dept. 2003])

Thus, having presented legally sufficient proof to establish prima facie that the Defendants did not depart from accepted standards of dental malpractice and that any alleged departures were not the proximate cause of Plaintiff's injuries, the burden shifts to the Plaintiff to proffer evidentiary proof in admissible form adequate to demonstrate the existence of material questions of fact that require a trial of the action. (Stukas v. Streiter, 83 AD3d 18 [2d Dept. 2011]) To meet these requirements in a dental malpractice context, the Plaintiff is required to submit, with his opposition papers, expert medical opinion evidence demonstrating merit in his claim. (Roques v. Nobel, supra at 206)

In opposition, the Plaintiff offers, inter alia, the expert affirmation of Myron Gurman, DDS, an orthodontist, licensed to practice dentistry in the State of New York and Board Certified in Orthodontics, who, in addressing the Defendants' instant motion for summary judgment, and based upon his review of "all the records submitted in support of defendant's motion [including] the deposition of the plaintiff and defendant [,] plus the records of Dr. Sasha Cekada DDS the plaintiff's general dentist, the report of the defendant's examining doctor Dr. Peter Blauzvern and the records and x-rays of Dr. Barry Bass" (See Gurman Affirmation, ¶ 3), opines, in pertinent part, as follows:

***4. It is my opinion within a reasonable degree of dental certainty that the defendant's treatment of the plaintiff departed from good and accepted practice and those departures caused injury and damage to the plaintiff's teeth. In addition, it is my opinion that the defendant failed to provide the plaintiff with the appropriate information concerning risks, benefits and alternative treatments to allow the plaintiff to be able to give an informed consent and that the orthodontic treatment in fact caused injury and damage to the plaintiff's teeth.5. Plaintiff denies that he was provided with any verbal discussions concerning risks involving possible root resorption, shortening of the roots and what affect that could have on the longevity of his teeth. It is my opinion that it is absolutely necessary to have a verbal discussion with the patient explaining to the plaintiff the facts and circumstances surrounding his particular condition and his specific treatment to explain how these risk may apply to him. No all-purpose consent form can adequately advise the patient and reliance on this and this alone is a departure from the standard of care.6. The consent forms used by Dr. Fulop were inadequate under the circumstances. Although Dr. Fulop denies in her EBT that orthodontics can cause root resorption, the 5th paragraph in her office informed consent states that in some cases the root ends are shortened during (orthodontic treatment). This shortening is per se root resorption...Merely having a potential patient sign the form does not mean that informed [*12]consent was adequately presented.***8. In both informed consent documents, there is no mention that the ONLY method of discovering root resorption is via x-rays. Therefore all potential patients that sign an informed consent are doing so under the logical assumption that the treating doctor will act according to the standard of care to recognize and diagnose any adverse circumstances outlined in the informed consent document. It is my opinion that the documentation signed by the patient was inadequate and did not properly prepare him for the potential consequences of root resorption.9. In addition it is apparent and my opinion that the orthodontic treatment of the defendant caused the root resorption and damage and there is in fact a causal connection between the treatment of the defendant and that damage.***11. The patient was not responsible for the damage. The patient did nothing at all that contributed to the damage he is suffering. Defense is trying to make an issue of the one year Noah waited to get tooth #5 (upper right 4) extracted, claiming that year is significant in that it's self-contributory. Dr. Fulop actually stated in her EBT that Noah received "no treatment" that year...and that his aligner still fit up to the time of his extraction. Therefore, the patient could not have been responsible for the damage. Also, any claim that swollen gums made Noah responsible for the root resorption is simply not scientifically correct.12. The damage done to the patient's teeth was caused by the orthodontics. Although there can be factors other than orthodontic appliances that may contribute to root resorption, it is my medical opinion that the only cause of the root resorption in this case is negligent treatment by Dr. Fulop. The damaged teeth are exactly the ones that she concentrated her treatment on. The upper anterior teeth were moved in several different directions over the course of many years using Invisalign and then traditional brackets. The nature of the movements and the fact that tooth #7 was shortened prior to treatment, necessitated constant monitoring (which was not done). Creating space for an implant requires x-rays to check the parallelism of the teeth adjacent the space as well as the integrity of the roots of the teeth. Proper evaluations were not done in this instance.***15. In paragraph 9 of Dr. Goodman's affirmation he denies a link between orthodontics and root resorption. There is actually a DIRECT link between orthodontics and root resorption. All histological studies have proven that the cementum (tissue surrounding the root) undergoes some level of resorption early in tooth movement associated with orthodontics. This stage is considered normal but nonetheless establishes the link that Dr. Goodman denies.16. Dr. Goodman's claim in paragraph 10 of his affirmation is incorrect. The delay (in time) in getting tooth #5 extracted did not and could not have contributed to the ultimate damage. There is no correlation here.17. Dr. Goodman claims in para. 11 of his affirmation that even if informed of all the risks no reasonable person in plaintiffs position would decline treatment. The plaintiff made no functional complaints whatsoever when he presented to the defendant and his reason for inquiring about treatment was cosmetic in nature. However it is my opinion [*13]that considering this patients requests which was mainly to close spaces and straighten his teeth, had he been presented with the information that rather than close the spaces between the teeth and the straightening of the teeth he had been advised he may lose the teeth all together a reasonable patient could easily have decided to decline treatment.******26. Noah originally came to Dr. Fulop to "close" his front teeth spaces. In his trust of Dr. Fulop he went along with her suggestion to have tooth #5 extracted to correct his upper dental midline and make room for congenitally missing tooth #10. The ultimate goal of his orthodontic treatment was to have a dental implant inserted with a crown on it to replace tooth #10. During the time that he was under Dr. Fulop's care, unmonitored root resorption occurred to tooth #7, tooth #8, and tooth #9. After 5 years of active orthodontic treatment, the amount of root resorption and the mobility of these teeth (from the loss of root support) made it impossible to finish his orthodontic treatment properly. His orthodontic result is now merely a compromise and temporary result due to the negligence of Dr. Fulop. Dr. Iacovetti removed his braces recently having to settle for an undesirable condition. Noah still has a space on his top right side (remember his original chief complaint?) And has to wear a bonded fixed retainer attached to many upper teeth with a false tooth attached to the retainer. In my opinion, this unsatisfactory condition is completely due to the damage directly caused by Dr. Fulop. There is currently no plan for Noah to have tooth #10 properly replaced or the residual space closed due to the extent of root damage. The fact that Noah lost a considerable % of root structure in mid 2014 alone, make it likely that these teeth have a poor prognosis. In fact, it is highly likely that he will need to have implants to eventually replace all his front teeth. I can't see any dentist doing long term restorative work on the upper anterior teeth in their precarious situation.27. It is my opinion within a reasonable degree of dental certainty that the plaintiff was not provided with appropriate informed consent. It further my opinion that the treatment performed by the defendant consisted of multiple departures from good and accepted practice which caused injury and damage to the plaintiff herein***(Affirmation In Opposition, Exhibit "1")

In light of the foregoing, this Court finds that the Plaintiff's submissions raise issues of material fact as to whether the alleged departures were the proximate cause of the alleged injury. Indeed, the question of causation, at this juncture, is best presented as the classic "battle of the experts" that may not be resolved on this motion for summary judgment (Velez v. Policastro, 1 AD3d 429 [2d Dept. 2003]; Cavlin v. New York Med. Group, 286 AD2d 469 [2d Dept. 2001]; Ibrahim v. Lombardo, 229 AD2d 423 [2d Dept. 1996]). Thus, the branch of the Defendant's motion seeking summary dismissal of the Plaintiff's orthodontic malpractice claim should be denied.

However, the Plaintiff has failed to present sufficient admissible evidence so as to preclude the summary dismissal of his "lack of informed consent" cause of action. That is, despite the Plaintiff's reliance upon, inter alia, the foregoing affidavit of his expert, Dr. Gurman, the Plaintiff has failed to demonstrate: (1) that the Defendants herein failed to disclose alternatives to the treatment and procedure or the reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances; (2) that a reasonably prudent patient in the same position would not [*14]have undergone the treatment if he or she had been fully informed; or for that matter (3) that the alleged lack of informed consent was a proximate cause of the injury. (Chan v. Toothsavers Dental Care, Inc., 125 AD3d 712 [2d Dept. 2015]; Tsimbler v. Fell, 123 AD3d 1009 [2d Dept. 2014]) Specifically, Dr. Gurman's opinions in this regard are wholly conclusory and not predicated upon the record. That is, while Dr. Gurman opines that "[n]o all purpose consent form can adequately advise the patient" and that "[m]erely having a potential patient sign the form does not mean that informed consent was adequately presented", the expert (and the Plaintiff) have failed to predicate these opinions on any evidence in the record. On the contrary, as noted above, this Court's plain reading of the consent forms, including the "Informed Consent and Agreement for the Invisalign Patient", obtained by Dr. Fulop-Goodling establishes that said documents were not "all purpose", rather the documents informed the patient of reasonably foreseeable risks associated with the treatment as well as the alternatives (Chan v. Toothsavers Dental Care, Inc., supra; Walker v. Saint Vincent Catholic Med. Ctrs., 114 AD3d 669 [2d Dept. 2014])

Moreover, even if the Defendant herein did not furnish the "requisite" informed consent, the evidence here nevertheless confirms that Dr. Ostreicher, with whom the Plaintiff consulted prior to seeking treatment with the Defendant herein, as well as the Plaintiff's own independent research as to the Invisalign process and procedures including the risks and benefits and alternative thereto, warrant a dismissal of the informed consent claim. The law is clear. A doctor is entitled to rely upon information previously furnished to the patient by another physician in determining whether the patient received sufficient information to make an informed decision. (Klatsky v. Lewis, 268 AD2d 410 [2d Dept. 2000]; Spinosa v. Weinstein, 168 AD2d 32 [2d Dept. 1991])

In addition, the Plaintiff has failed to present admissible evidence sufficient to refute the fact that had the risks and alternatives that were allegedly to be disclosed to the Plaintiff to enable him to make an "informed" decision been told, a reasonable person in the Plaintiff's position would not have undergone the procedure. In this case, the Plaintiff admitted to soliciting treatment for this elective procedure for the sole purpose of getting his teeth straightened and the gaps in his front, upper and lower teeth closed. His concern was cosmetic. Indeed, he specifically testified that given his age, he was personally very interested in Invisalign rather than the traditional braces. He also testified that he had personally done research on Invisalign prior to even consulting with the Defendant. The test of whether the patient would have consented if appropriate information was given is objective. (Dooley v. Skodnek, 138 AD2d 102 [2d Dept. 1988]) Public Health Law § 2805-d (3) requires that it "be established that a reasonably prudent person would not have undergone the treatment or diagnosis if he had been fully informed". (Motichka v. Cody, 279 AD2d 310 [1st Dept. 2001]) This, the Plaintiff has failed to do here.

Accordingly, it is hereby

ORDERED, that the branch of the motion brought by the Defendants, pursuant to CPLR § 3212, seeking summary judgment dismissal of the Plaintiff's orthodontic malpractice claim, is DENIED; and it is further

ORDERED, that the branch of the motion brought by the Defendants, pursuant to CPLR § 3212, seeking summary judgment dismissal of the Plaintiff's "lack of informed consent" cause of action, is GRANTED.

This decision constitutes the decision and order of the court.

DATED: Mineola, New York

February 18, 2016

______________________________

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:The Plaintiff claims herein that he treated with the Defendant from March 2009 through July 2014 —i.e., from the ages of 25 through 30.

Footnote 2:The Plaintiff testified that during his treatment at Woodbury Pediatric and Orthodontic Dental Care from 2009 through July 2014, in addition to seeing the Defendant, he also saw Dr. Sasha Cekada (a general dentist), Dr. Barbara Jurim (a prosthodontist) and Dr. David Jurman (an oral surgeon), infra (Id. at 43-44, 47). The Plaintiff explained that the purpose of his visit with Dr. Cekada was to have a tooth in the upper right side of his mouth extracted at the recommendation of the Defendant, Dr. Fulop-Goodling; The Plaintiff stated that he understood that the Defendant wanted to have this tooth removed "so she can move my teeth" (Id. at 45-46).

Footnote 3:Plaintiff confirmed that in July 2014 Dr. Cekada had explained root resorption to him saying that "it has nothing to do with hygiene" and that "it is one hundred percent mechanical...purely from the orthodontic courses" (Id. at 157, 159-160).

Footnote 4:The Plaintiff also asserts claims of vicarious liability against the Defendant, Jacqueline Fulop-Goodling, D.M.D. d/b/a Woodbury Pediatric and Orthodontic Dental Care (Bill of Particulars, ¶¶ 3-5).