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Mark H. Weinstein v. Stuart J. Froum

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


March 24, 2011

MARK H. WEINSTEIN,
PLAINTIFF-RESPONDENT, DR.
v.
STUART J. FROUM, DDS, PC,
DEFENDANT-APPELLANT.

Per curiam.

Weinstein v Froum

Decided on March 24, 2011

Appellate Term, First Department 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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ

Defendant appeals from a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Debra Samuels, J.), entered on or about August 11, 2010, after trial, in favor of plaintiff in the principal sum of $5,000.

Judgment (Debra Samuels, J.), entered on or about August 11, 2010, reversed, without costs, and judgment is entered in favor of defendant dismissing the action.

Contrary to the conclusion of the trial court, the parties did not enter into a binding contract for the use of Emdogain, a bone regenerative material, by defendant periodontist in connection with plaintiff's surgery, given that the medical necessity letter relied upon by the trial court bore none of the traditional indicia of a contract (see Power Cooling v Churchill School & Ctr, 17 AD3d 148 [2005], lv denied 5 NY3d 712 [2005]; Kensington Court Assoc. v Gullo, 180 AD2d 888, 889 [1992]).

On the other hand, the parties' medical consent form is a written, clear and unambiguous agreement, which specifies what bone graft materials and surgical procedures defendant could use in his treatment of plaintiff, and therefore, any evidence about a prior alleged agreement limiting defendant to the use of Emdogain is parol evidence that should not have been admitted or considered in this case to create an ambiguity in the consent form (see Locke v Nathanson, 16 Misc 3d 133[A], 2007 NY Slip Op 51500[U] [2007]). It is undisputed that plaintiff signed the consent form and he is thus bound by its terms, notwithstanding that he did not care about, and failed to read, the consent form (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 304 [2001]; Gillman v Chase Manhattan Bank, 73 NY2d 1, 11 [1988]).

Moreover, even if plaintiff had established a cause of action for breach of contract or for lack of informed consent, he would still not be entitled to an award of damages because he failed to establish that he suffered any damages at all as a result of defendant's failure to use Emdogain (see Amodio v Wolpert, 52 AD3d 1078, 1079-1080 [2008]). Thus, dismissal of the small claims action achieves "substantial justice" consistent with substantive law principles (CCA 1807).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date:March 24, 2011

20110324

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