Valentino v Fuertes

[*1] Valentino v Fuertes 2021 NY Slip Op 51103(U) Decided on November 22, 2021 Supreme Court, Columbia County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2021
Supreme Court, Columbia County

Ryan Valentino, Plaintiff,

against

Jaime Fuertes, DMD and ASPEN DENTAL ASSOCIATES OF HUDSON VALLEY, PLLC, Defendants.



Index No. E012020015748



Murphy & Lambiase

Attorneys for Plaintiff

Donald J. Lambiase, Esq., of counsel

26 Scotchtown Avenue

Goshen, New York 10924

Sugarman Law Firm, LLP

Attorneys for Defendants

Jeffrey N. Narus, Esq.

211 West Jefferson Street

Syracuse, New York 13202
Henry F. Zwack, J.

In this dental malpractice action, the defendants Jaime Fuertes, DMD and Aspen Dental Associates of Hudson Valley, PLLC move pursuant to CPLR 3212 for summary judgment and an Order dismissing the Complaint of the plaintiff, Ryan Valentino. The plaintiff opposes.

At issue in this action is whether it is acceptable standard of care in the practice of dentistry, under the circumstances presented, to not prescribe antibiotics prior to tooth extraction. In support of their motion for summary judgment, the defendants produced an affidavit by counsel, together with supporting exhibits (including pleadings and deposition transcripts), an expert's affidavit (Gregory L. French, D.M.D.), a Statement of Material Facts pursuant to Uniform Rule 202.8-g, and a Memorandum of Law. In opposition, the plaintiff produced his attorney's affirmation, his expert's affirmation (Stanley Weiss, DDS), and an affidavit by his wife (Brianne Michele Valentino). The plaintiff's opposing papers did not include, as required by 202.8-g, either a response to the defendants' Statement of Material Facts or his own Statement of Material Facts.

For the reasons that follow the Court grants the defendants' motion for summary judgment in its entirety and dismisses the plaintiff's Complaint.

Turning first to the procedural requirements applicable to a summary judgment application, Uniform Rule 202.8-g, in effect since February 1, 2021, is mandatory (Reus v ETC Hous. Corp., 72 Misc 3d 479 [Sup Ct, Clinton County 2021]; Amos Financial LLC v Crapanzano, 73 Misc 3d 448 [Sup Ct, Rockland County 2021]) and requires a party moving for summary judgment to annex "to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried" (202.8-g(a)). The facts set out in the movant's statement are deemed admitted (202.8-g(b)) unless the opposing party specifically controverts the same by papers including "a correspondingly numbered paragraph to each numbered paragraph in the statement of the moving party...as to which it is contended that there exists a genuine issue to be tried" (202.8-g(b)).

Certainly, the procedural requirements of Rule 202.8-g are straightforward, as are the consequences of a party's failure to comply with the Rule. Here, the defendants, in compliance with the Rule, tendered proof to establish their prima facie entitlement to summary judgment. In opposition, the plaintiff utterly disregarded the Rule, and as consequence the facts defendants assert are deemed admitted.

While the Court is mindful of its inherent power to exercise discretion, Rule 202.8-g affords no alternative to allow it to overlook a party's failure to comply with its strict requirements — whether for good cause or by its search of the record — and the consequences of a failure to comply with the Rule. Stated differently, here the plain language of the Rule is incapable of any other construction to avoid the Court from deeming the defendants' statement of material facts admitted and thereby granting them summary judgment.

Even if the Court could overlook the plaintiff's failure to comply with Rule 202.8-g, on this record the defendants have established their entitlement to summary judgment — namely that "there is no material issue of fact to be tried (Brill v City of New York, 2 NY3d 648, 651 [2004]); and that the plaintiff failed "to establish, by admissible proof, the existence of a triable issue of fact (Lockwood v Layton, 79 AD3d 1342, 1342-1342 [3d Dept 2010]).

Again, the issue in this dental malpractice action is whether it is acceptable standard of care in the practice of dentistry, under the circumstances presented, not to prescribe antibiotics prior to a tooth extraction. Particularly, the defendants' expert Dr. French opines that "Dr. Fuertes was not required to prescribe Plaintiff prophylactic antibiotics for the extraction (of [*2]plaintiff's tooth)...Plaintiff did not have any redness or swelling in the gums, jaw, or face...There was no evidence that plaintiff was suffering any type of infection prior to the extraction, including an abscess, and therefore no indication to prescribe antibiotics prior to the extraction." Dr. French's affidavit continues: There was no evidence on imaging or physical examination that Plaintiff had an abscess or infection that could be drained or treated prior to the extraction." Dr. French also opines that "Plaintiff's infection and subsequent development of Ludwig's Angina was a rare but known complication of extraction...(and) not caused by any deviation from accepted dental care by Dr. Fuertes or by a failure of Dr. Fuertes to diagnose and treat an infection or abscess."

Even setting aside the plaintiff's failure to include the required 202.8-g response to the defendants' statement of material facts (or that these facts are deemed admitted), the plaintiff's proof in opposition fails to raise a triable issue and survive summary judgment. Particularly, the affidavit by plaintiff's expert, Dr. Weiss, is insufficient and largely conclusory, relying on an "affirmation of Elliot Siegal" which has not been provided.[FN1] Further, Dr. Weiss affirms that he reviewed the treatment records, but fails to state that he reviewed the plaintiff's x-ray, yet later his affidavit states, with regard to plaintiff's dental x-ray, "there is no simply no basis ...for the assertion that there was no abscess visible on the film...the record, at best, is silent on that issue." Certainly, without stating that he actually reviewed the plaintiff's dental x-ray, there was no basis for Dr. Weiss to posit one or the other whether an abscess is visible.[FN2]

Further problematic, is Dr. Weiss's reliance on the affidavit of the plaintiff's wife, who states that she saw "defined and pronounced swelling" of the plaintiff's face before the tooth extraction. In her deposition testimony she states that she was "not sure" about any swelling.[FN3] At best, her affidavit was shaped to avoid the consequences of earlier deposition testimony — and also the plaintiff's deposition testimony that he noticed no swelling or redness prior to the tooth extraction. Certainly, a feigned issue of fact to avoid the consequences of earlier deposition testimony is insufficient to raise a triable issue of fact (Blochl v RT Long Is.Franchise, LLC., 70 AD3d 993 [2d Dept 2010]). Because Dr. Weiss' expert "conclusions are based on the feigned facts in (the wife's affidavit), the expert's affirmation also fails to raise a triable issue of fact" [*3](Feaster-Lewis v Rotenberg, 93 AD3d 421, 423 [1st Dept 2012]).

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is granted, and the complaint is dismissed.

This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court onto NYSCEF. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated: November 22, 2021

Troy, New York

____________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered, as filed on NYSCEF:

1. Documents No. 23 through 34;

2. Documents No. 37 through 39;

3. Document No. 40

NYSCEF filed documents "23" through "40."

Footnotes

Footnote 1:This is most probably a proof-reading error, but the Court is bound by this affidavit.

Footnote 2:Plaintiff's expert, Gregory French, DMD, examined the x-ray and saw no abscess visible.

Footnote 3:In his deposition, the plaintiff testified, in response to whether he had any swelling or redness, "not that I really noticed. No. Not prior to the tooth being pulled, no."