FRATTAROLI v. JOSEPH

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Supreme Court, Appellate Division, Second Department, New York.

Maria FRATTAROLI, etc., et al., Respondents, v. Edgar S. JOSEPH, Appellant (and two Third-Party actions).

Decided: June 24, 2002

A. GAIL PRUDENTI, P.J., DAVID S. RITTER, LEO F. McGINITY and SANDRA L. TOWNES, JJ. Murphy & Higgins, LLP, New Rochelle, N.Y. (Daniel Schiavetta, Jr., of counsel), for appellant. Finz & Finz, P.C., Jericho, N.Y. (Jay L. Feigenbaum of counsel), for respondents.

In an action, inter alia, to recover damages for wrongful death and dental malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Golia, J.), dated May 8, 2001, as denied his cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the complaint is dismissed.

This wrongful death and dental malpractice action arises out of the alleged failure of the defendant to timely diagnose and treat the plaintiff's decedent's tongue cancer.   While the cancerous lesion was not observed by the plaintiff and her decedent until April of 1992, the plaintiff claims that the defendant was negligent in failing to properly diagnose the decedent's condition as early as July 1991, when the decedent allegedly first began to experience redness and swelling on the left side of his tongue and went to the defendant for treatment.   However, in opposition to the defendant's prima facie demonstration of entitlement to judgment as a matter of law, the plaintiffs failed to raise a triable issue of fact that the defendant departed from good and accepted dental care in his treatment of the decedent, and that such a departure was a proximate cause of the damages alleged (see Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 669 N.Y.S.2d 631;  Kramer v. Rosenthal, 224 A.D.2d 392, 637 N.Y.S.2d 772;  Carrasquillo v. Rosencrans, 208 A.D.2d 488, 617 N.Y.S.2d 51).   Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.

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