CONNECTICUT INDEMNITY CO v. Herbert S. Rubin, D.M.D., Defendant-Appellant. (2007)

Orders, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered May 18, 2006 and December 6, 2006, which, in a subrogation based on dental malpractice, denied defendant-appellant's motions for a severance of the claims against him from those against the codefendants, and for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

 The motion for summary judgment was properly denied for failure to make a prima facie showing that appellant's capping and splinting of the patient's teeth was in accordance with good and accepted dental practice (compare Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985], with Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   Appellant's admitted consultation with the codefendants raises common issues of law and fact between the claims asserted against defendants warranting a joint trial, absent a showing, not made here, that substantial delay or prejudice would thereby result (see Andresakis v. Lynn, 236 A.D.2d 252, 653 N.Y.S.2d 559 [1997] ).   We have considered appellant's remaining arguments and find them unavailing.