STARR v. ROGERS (2007)

In an action, inter alia, to recover damages for dental malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Murphy, J.), entered December 9, 2005, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) an order of the same court entered May 10, 2006, which denied their motion to enforce a purported oral stipulation of settlement.

ORDERED that the orders are affirmed, with one bill of costs.

On December 2, 1996, the then-46-year-old plaintiff Steven Starr (hereinafter the plaintiff), exhibiting numerous missing and broken teeth and periodontal disease, first visited the defendant dentist, Dr. Scott Rogers, for dental treatment.   During the course of his several intermittent treatments of the plaintiff from 1996 to May 22, 2003, the defendant performed various dental procedures.   Dissatisfied with the services, the plaintiff and his wife, the plaintiff Denise Starr, derivatively, commenced the instant action on or about February 19, 2004, inter alia, to recover damages for dental malpractice, claiming that the defendant departed from accepted dental and medical standards.

The Supreme Court granted the defendant's motion for summary judgment dismissing the complaint on the grounds, inter alia, that any claim to recover damages for dental malpractice relating to treatment rendered prior to August 24, 2001, was barred by the statute of limitations, and the defendant established as a matter of law that he did not depart from the requisite standard of care.

 After argument on the motion for summary judgment, but before the court determined the motion, the plaintiffs' counsel and the defendant's insurance representative orally agreed to settle the matter.   The plaintiffs moved to enforce this purported oral stipulation of settlement.   The Supreme Court denied the plaintiffs' motion to enforce the purported oral stipulation of settlement, finding that it was not binding on the defendant since the agreement did not comply with CPLR 2104.   We agree, and affirm both orders.

 To be enforceable, stipulations of settlement must conform to the requirements of CPLR 2104 (see DeVita v. Macy's E., Inc., 36 A.D.3d 751, 828 N.Y.S.2d 531;  Marpe v. Dolmetsch, 256 A.D.2d 914, 681 N.Y.S.2d 840;  cf. Conlon v. Concord Pools, 170 A.D.2d 754, 754-755, 565 N.Y.S.2d 860).   Pursuant to CPLR 2104, a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys (see Bonnette v. Long Is. Coll. Hosp., 3 N.Y.3d 281, 285, 785 N.Y.S.2d 738, 819 N.E.2d 206;  Matter of Dolgin Eldert Corp., 31 N.Y.2d 1, 8-9, 334 N.Y.S.2d 833, 286 N.E.2d 228).   Contrary to the plaintiffs' contention, the defendant should not be estopped from asserting noncompliance with CPLR 2104 as a ground to preclude enforcement of the purported oral stipulation of settlement since there is no indication that the plaintiffs were misled by the purported oral stipulation of settlement or detrimentally relied upon its terms (see Curcio v. Hogan Coring & Sawing Corp., 303 A.D.2d 357, 357-358, 756 N.Y.S.2d 269;  Greenidge v. City of New York, 179 A.D.2d 386, 387, 578 N.Y.S.2d 157;  Busshart v. Park, 171 A.D.2d 1079, 579 N.Y.S.2d 607;  Van Syckle v. Powers, 106 A.D.2d 711, 712-713, 483 N.Y.S.2d 756;  cf. Lowe v. Steinman, 284 A.D.2d 506, 507-508, 728 N.Y.S.2d 56;  Smith v. Lefrak Org., 142 A.D.2d 725, 725, 531 N.Y.S.2d 305).   Accordingly, the Supreme Court properly denied the plaintiffs' motion to enforce the purported oral stipulation of settlement.

 As to the defendant's alleged departures from accepted dental practices, “[o]n a motion for summary judgment dismissing the complaint in a medical [or dental] malpractice action, ‘the defendant doctor [or dentist] has the initial burden of establishing the absence of any departure from good and accepted medical [or dental] practice or that the plaintiff was not injured thereby’ ” (Chance v. Felder, 33 A.D.3d 645, 645, 823 N.Y.S.2d 172, quoting Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664;  see Gargiulo v. Geiss, 40 A.D.3d 811, 836 N.Y.S.2d 276;  Alvarado v. Miles, 32 A.D.3d 255, 257, 820 N.Y.S.2d 39).  “General allegations of medical [or dental] malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical [or dental] malpractice, are insufficient to defeat defendant physician's [or dentist's] summary judgment motion” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see Kremer v. Buffalo Gen. Hosp., 269 A.D.2d 744, 745, 703 N.Y.S.2d 622;  Juba v. Bachman, 255 A.D.2d 492, 493, 680 N.Y.S.2d 626).

 The Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.   The defendant established his prima facie entitlement to judgment as a matter of law through the submission of, inter alia, his own expert affidavit, his deposition testimony, and the plaintiff's medical and dental records (see Gargiulo v. Geiss, 40 A.D.3d at 812, 836 N.Y.S.2d 276;  Juba v. Bachman, 255 A.D.2d at 492, 680 N.Y.S.2d 626;  Whalen v. Victory Mem. Hosp., 187 A.D.2d 503, 589 N.Y.S.2d 590).   In opposition, the affidavit of the plaintiffs' expert contained only conclusory opinions regarding the defendant's alleged negligence, and was thus insufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Gargiulo v. Geiss, 40 A.D.3d at 812, 836 N.Y.S.2d 276;  DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674).

The plaintiffs' remaining contention is without merit.