Karen Lograsso, appellant-respondent, v. Lynn Pierri, etc., et al., respondents-Appellants. (2026)

Argued—January 23, 2026

DECISION & ORDER

C/

In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals, and the defendants cross-appeal, from an order of the Supreme Court, Suffolk County (James F. Quinn, J.), dated March 31, 2023.  The order, insofar as appealed from, granted those branches of the defendants' unopposed motion which were for summary judgment dismissing so much of the complaint as was based on allegations of dental malpractice occurring prior to March 24, 2016, and for summary judgment dismissing the causes of action to recover damages for lack of informed consent and negligent hiring and supervision.  The order, insofar as cross-appealed from, denied that branch of the defendants' unopposed motion which was for summary judgment dismissing so much of the complaint as was based on allegations of dental malpractice occurring after March 24, 2016.

ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511);  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from, without costs or disbursements.

The plaintiff commenced this action on September 24, 2018, to recover damages, inter alia, for dental malpractice involving treatment by the defendants that allegedly occurred from September 13, 2013, through May 11, 2016.  The defendants moved for summary judgment dismissing the complaint.  The plaintiff filed untimely opposition papers, which contained no excuse for their untimeliness, and thereafter attempted to submit a surreply, in effect, requesting that her untimely opposition be considered.  In an order dated March 31, 2023, the Supreme Court granted, as unopposed, those branches of the defendants' motion which were for summary judgment dismissing so much of the complaint as was based on allegations of dental malpractice occurring prior to March 24, 2016, and for summary judgment dismissing the causes of action to recover damages for lack of informed consent and negligent hiring and supervision and denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as was based on allegations of dental malpractice occurring after March 24, 2016.  The plaintiff appeals, and the defendants cross-appeal.

No appeal lies from an order or judgment granted upon the default of the appealing party (see Matter of Frazier v. Hamlett, 215 AD3d 836, 836–837;  Leader v. Steinway, Inc., 186 AD3d 1207, 1209).  Here, the plaintiff failed to timely oppose the defendants' motion.  Accordingly, the plaintiff's appeal must be dismissed (see Leader v. Steinway, Inc., 186 AD3d at 1209;  HSBC Bank USA, N.A. v. Simms, 163 AD3d 930, 932).

“ ‘A defendant moving for summary judgment dismissing a cause of action alleging dental malpractice has the initial burden of establishing that he or she did not depart from good and accepted practice, or if there was such a departure, that it was not a proximate cause of the plaintiff's injuries' ” (Turetsky v. Shumantov, 222 AD3d 906, 906–907, quoting Cujcuj v. Jayadevan, 218 AD3d 436, 437).  “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars” (Hannen v. Nici, 230 AD3d 1118, 1119 [internal quotation marks omitted];  see Kielb v. Bascara, 217 AD3d 756, 756).

Here, the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as was based on allegations of dental malpractice occurring after March 24, 2016.  The defendants failed to address the specific allegations of dental malpractice set forth in the complaint and bill of particulars regarding their allegedly negligent treatment of the plaintiff after March 24, 2016 (see Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 913;  Oliver v New York City Health & Hosps.  Corp., 178 AD3d 1057, 1059).  Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing so much of the complaint as was based on allegations of dental malpractice occurring after March 24, 2016, regardless of the sufficiency of the plaintiff's untimely opposition papers (see Kogan v. Bizekis, 180 AD3d 659, 661;  Smarkucki v. Kleinman, 171 AD3d 1118, 1119).

The plaintiff's remaining contentions are without merit.

DILLON, J.P., CHAMBERS, WAN and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court