OSBORNE v. Alexander Lee, etc., appellant. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for dental malpractice, the defendant Alexander Lee appeals from an order of the Supreme Court, Orange County (Sandra B. Sciortino, J.), dated March 5, 2024.  The order denied that defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

On October 23, 2018, the defendant Alexander Lee extracted the plaintiff's tooth number 17, her lower left wisdom tooth, at the office of the defendant Merchant Square Dental, PLLC (hereinafter MSD).  At the time, the plaintiff was employed as a receptionist for MSD. It is undisputed that Lee did not create a contemporaneous dental record of the extraction.  The plaintiff allegedly began experiencing numbness to the left side of her tongue after the extraction and was diagnosed in August 2019 with traumatic neuropathy of the left lingual nerve.

The plaintiff commenced this action against Lee, MSD, and the defendant Syed Masihudden, MSD's principal, alleging, among other things, that Lee caused the left lingual nerve injury and that his failure to timely refer the plaintiff to a specialist in response to her complaints resulted in the injury becoming permanent.  The plaintiff asserted, inter alia, causes of action to recover damages for dental malpractice and lack of informed consent.  Lee moved for summary judgment dismissing the amended complaint insofar as asserted against him.  In an order dated March 5, 2024, the Supreme Court denied Lee's motion.  Lee appeals.

“ ‘In a dental malpractice action, the requisite elements of proof are a deviation or departure from accepted standards of dental practice, and that such departure was a proximate cause of the plaintiff's injuries’ ” (Many v. Lossef, 190 A.D.3d 721, 722, 137 N.Y.S.3d 128, quoting Nelson v. Lighter, 179 A.D.3d 933, 934, 116 N.Y.S.3d 360).  “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” (Cujcuj v. Jayadevan, 218 A.D.3d 436, 437, 193 N.Y.S.3d 96 [internal quotation marks omitted];  see Schmidt v. Bangiyev, 210 A.D.3d 924, 924, 178 N.Y.S.3d 212;  Zito v. Jastremski, 84 A.D.3d 1069, 1070, 925 N.Y.S.2d 91).  “ ‘To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the ․ bill of particulars’ ” (Cujcuj v. Jayadevan, 218 A.D.3d at 437, 193 N.Y.S.3d 96, quoting Koi Hou Chan v. Yeung, 66 A.D.3d 642, 643, 887 N.Y.S.2d 164).

Here, Lee failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging dental malpractice insofar as asserted against him.  An affirmation from Lee's dental expert was conclusory, ignored contradictions in the parties' deposition testimony, including the plaintiff's deposition testimony that she was not experiencing pain prior to the extraction, and failed to address the plaintiff's allegations that Lee deviated from the standard of care by failing to create a contemporaneous dental record and by failing to remove a fragment of the tooth (see Folkes v. Brooklyn Oak Dental Care, P.C., 241 A.D.3d 508, 509, 238 N.Y.S.3d 288;  Stiso v. Berlin, 176 A.D.3d 888, 890, 110 N.Y.S.3d 139).  Additionally, the opinion of Lee's dental expert that the plaintiff's lingual nerve injury was not caused by any negligence on Lee's part was conclusory and failed to address the plaintiff's allegation that the lingual nerve injury could have been treated if Lee had timely referred her to a specialist (see Chillious v. Edouard, 234 A.D.3d 737, 740, 225 N.Y.S.3d 321;  Lopresti v. Alzoobaee, 217 A.D.3d 759, 760–761, 191 N.Y.S.3d 171;  Kadanoff v. Whitlow, 189 A.D.3d 1569, 1570, 137 N.Y.S.3d 399).

Lee also failed to establish his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent insofar as asserted against him.  “To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury” (Clinkscales v. Tostanoski, 241 A.D.3d 773, 775, 240 N.Y.S.3d 454 [internal quotation marks omitted];  see Godel v. Benjy Goldstein & George Freud, D.D.S., PLLC, 155 A.D.3d 939, 942, 64 N.Y.S.3d 127).

Here, Lee conceded that he did not obtain the plaintiff's written consent prior to the extraction and testified at his deposition that he did not discuss an alternative treatment option with the plaintiff.  Moreover, the plaintiff testified at her deposition that Lee did not discuss the risks associated with the extraction with her.  However, Lee's dental expert failed to address this evidence.  Accordingly, Lee's motion papers failed to eliminate triable issues of fact with respect to the issue of informed consent (see Folkes v. Brooklyn Oak Dental Care, P.C., 241 A.D.3d at 509, 238 N.Y.S.3d 288;  Xiao Yan Ye v. Din Lam, 191 A.D.3d 827, 829, 141 N.Y.S.3d 125;  Silveri v. Glaser, 166 A.D.3d 1044, 1046–1047, 87 N.Y.S.3d 254).

In light of our determination, it is unnecessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Lee's remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied Lee's motion for summary judgment dismissing the amended complaint insofar as asserted against him.

CONNOLLY, J.P., WARHIT, VOUTSINAS and GOLIA, JJ., concur.