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Cabrera v. New York University College of Dentistry (N.Y.App.Term 09/11/2009)

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


September 11, 2009

PEDRO CABRERA, PLAINTIFF-RESPONDENT,
v.
NEW YORK UNIVERSITY COLLEGE OF DENTISTRY, DEFENDANT-APPELLANT.

Defendant appeals from (1) an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered April 24, 2008, which granted plaintiff's motion for renewal and reargument to the extent of directing an in camera inspection of plaintiff's expert affirmation, and (2) an order (same court and Judge), entered June 17, 2008 which, upon reargument and renewal, vacated a prior order granting summary judgment dismissal to defendant and reinstated plaintiff's complaint.

Per curiam.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Miscellaneous Reports.

PRESENT: McKeon, P.J., Schoenfeld, Heitler, JJ

570634/08.

Orders (Julia I. Rodriguez, J.), entered April 24, 2008, and June 17, 2008, affirmed, with one bill of $10 costs.

Civil Court properly exercised its discretion in granting plaintiff leave to renew based upon the affirmation of plaintiff's attorney explaining why his medical expert's affirmation was unsigned and redacted (see Mattis v Keen, Zhao, 54 AD3d 610 [2008]) and correcting the procedural error pursuant to CPLR 2106 (see Cespedes v McNamee, 308 AD2d 409 [2003]; Puntino v Chin, 288 AD2d 202 [2001]). On renewal, the court correctly determined that factual issues were presented by the conflicting opinions offered by the parties' medical experts as to whether defendant departed from the prevailing standard of care and, if so, whether such departure proximately caused plaintiff's injuries (see Prigorac v Park, 20 AD3d 363 [2005]). I concur McKEON, P.J. (concurring in part and dissenting in part).

I agree with the majority that Civil Court properly exercised its discretion in granting renewal and permitting plaintiff to cure deficiencies in the expert affirmation submitted in opposition to defendant's motion for summary judgment (see Mattis v Keen, Zhao, 54 AD3d 610 [2008]). I disagree, however, with the majority's conclusion that the affirmation of plaintiff's expert was sufficient to raise issues of fact warranting a trial.

While plaintiff's expert opined that defendant's employees departed from good and accepted dental practice in their treatment of plaintiff, apparently in not initially utilizing more conservative modalities, nary a word is uttered on how that supposed deviation caused the multitude of physical complaints alleged in plaintiff's bill of particulars. Plaintiff's expert's opinion on causation consisted of nothing more than a generalized, conclusory statement that plaintiff's pain and suffering, both past and future, were caused by defendant's alleged malpractice.

Defendant's expert, on the other hand, was quite specific in explaining that plaintiff's claimed injuries were either pre-existing, caused by smoking or poor oral hygiene, or neurologically and/or physiologically impossible, based on the treatment rendered by defendant.

Plaintiff's submissions, in my view, were legally insufficient to establish a causal nexus between the claimed departure and plaintiff's injuries (Koeppel v Park, 228 AD2d 288 [1996]). Thus, on renewal, defendant was entitled to summary judgment dismissing the complaint.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

20090911

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