The following papers read on this motion:Notice of Motions and Affidavits XAffirmation in Opposition XReply Affirmation XRelief Requested Motion by the defendant, Dr. Robert Winegarden, for an order, pursuant to CPLR 3212, granting summary judgment in his favor dismissing the plaintiff’s complaint (Motion Sequence No. 3). Motion by the defendant, Dr. Hyonchol Lee a/k/a Michael Lee, for an order, pursuant to CPLR 3212, granting summary judgment in his favor dismissing the plaintiff’s complaint (Motion Sequence No. 4). The plaintiff submits opposition. The movants submit respective reply affirmations.BackgroundThe plaintiff initiated this action sounding in dental malpractice and lack of informed consent. Plaintiff alleges injuries to his mouth including pain and root canals, well as injuries to his ankle, allegedly suffered when plaintiff lost consciousness due to extreme pain in his mouth.Applicable LawThe court’s function on this motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 165 N.Y.S.2d 498). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 413 N.Y.S.2d 141). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (Stone v. Goodson, 200 N.Y.S.2d 627). The role of the court is to determine if bonafide issues of fact exist, and not to resolve issues of credibility (Gaither v. Saga Corp., 203 A.D.2d 239; Black v. Chittenden, 69 N.Y.2d 665).The essential elements of a [dental] malpractice claim are a departure from good and accepted [dental] practice and evidence that such departure was a proximate cause of the plaintiff’s injury (Williams v. Sahay, 12 A.D.3d 366). On a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (Id; see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). To maintain a cause of action for lack of informed consent, it must be established that a reasonably prudent person in the patient’s position would not have undergone the treatment if he had been fully informed and that the lack of informed consent is a proximate cause of the injury for which recovery is sought (see NY CLR Pub Health §2805-d[3]).DiscussionIn support of his motion, Dr. Winegarden submits the affidavit of dentist Stanley Heifetz. Dr. Heifetz opines that Dr. Winegarden’s examination and care of the plaintiff were appropriate. Dr. Heifetz notes that the plaintiff signed two consent forms during his first visit on August 19, 2014. One of the consent forms was for restoration of plaintiff’s upper and lower arches, fix prosthesis, extraction, root canal and implants, and the other was for Dr. Lee’s implant surgery. The second and final time that Dr. Winegarden saw the plaintiff was on August 26, 2014, which was a follow up appointment wherein no treatment was rendered. Dr. Heifetz concludes that there were no departures from accepted standards of dental care by Dr. Winegarden. Dr. Heifetz adds that, while plaintiff complains of the temporary bridge placed by Dr. Winegarden, such was replaced by another dentist on September 11, 2014, and as such, cannot possibly be attributable to plaintiff’s subsequent fall and ankle injury in October of 2014.In support of his motion, Dr. Lee submits the affidavit of dentist Theodore J. Jenal. Dr. Jenal notes that Dr. Lee’s treatment of the plaintiff did not involve bridgework as alleged in the plaintiff’s complaint, but rather that Dr. Lee’s treatment was limited to implant placement for teeth numbers four, five, twelve and fourteen. Dr. Lee placed two implants on August 19, 2014 and placed an additional two implants on September 2, 2014. Dr. Jenal opines that Dr. Lee acted with plaintiff’s informed consent and in accordance with the standard of care at all times, noting that all implants performed by Dr. Lee appeared to be well integrated. Dr. Jenal concludes that there is no injury causally related to Dr. Lee’s treatment of plaintiff.The movants further submit the deposition transcript of the plaintiff, who conceded that, on the day of his ankle injury, he had injected himself with extra insulin prior to fainting. The plaintiff also stated in his deposition that the implants placed by Dr. Lee were “perfect.”Here, the moving defendants have made a prima facie showing of entitlement to summary judgment (see Winegrad, supra).In opposition, the plaintiff submits the affirmation of Jay Golub, a dentist. Dr. Golub opines that Dr. Winegarden deviated from accepted standards of dental practice in his care and treatment of the plaintiff, and that the movants failed to obtain plaintiff’s informed consent for the treatment they rendered. Dr. Golub stated that he does “not question the quality of the implant surgery done by Dr. Lee,” but opines that Dr. Lee should have performed a periodontal workup in light of the fact that Dr. Winegarden had failed to adequately perform an evaluation.In light of the foregoing, the plaintiff has failed to raise a triable issue of fact to warrant denial of these summary judgment motions. As a preliminary matter, plaintiff wholly fails to rebut the movants’ showing that plaintiff’s October 2014 fall and ankle injury are completely unrelated to any treatment provided by the defendants between August 19, 2014 and September 2, 2014. In fact, plaintiff’s expert failed to articulate how any deviations from accepted standards of practice might have proximately caused any of the injuries alleged by the plaintiff (see Williams, supra). For instance, while Dr. Golub opines that “tooth #11 should have had root canal therapy rendered at time of bridge preparation,” he fails to describe any injury resulting from the defendants’ alleged failure to render such treatment at that time, aside from the continued need for root canal therapy which has since been provided elsewhere.Further, since the plaintiff cannot establish proximate cause, the defendants are also entitled to summary judgment dismissing the cause of action alleging lack of informed consent (see NY CLR Pub Health §2805-d[3]; Yankus v. Kelly, 72 A.D.3d 1068; see also Hartt v. Kramer, 155 A.D.3d 560).ConclusionAccordingly, it is herebyORDERED that Dr. Winegarden’s motion for summary judgment dismissing the complaint as against him is granted, and it is furtherORDERED that Dr. Lee’s motion for summary judgment dismissing the complaint as against him is granted.Dated: May 16, 2019
