SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
415
CA 16-01390
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.
FRANK P. CZERESZKO,
PLAINTIFF-APPELLANT-RESPONDENT,
V MEMORANDUM AND ORDER
STEVE A. PROCOPIO, JR., D.D.S., AND STEVE A.
PROCOPIO, JR., D.D.S., P.C.,
DEFENDANTS-RESPONDENTS-APPELLANTS.
SNYDER LAW FIRM, PLLC, SYRACUSE (DAVID B. SNYDER OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.
NAPIERSKI, VANDENBURGH, NAPIERSKI & O’CONNOR, LLP, ALBANY (JOHN W.
VANDENBURGH OF COUNSEL), FOR DEFENDANTS-RESPONDENTS-APPELLANTS.
Appeal and cross appeal from an order of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered November 13, 2015.
The order, among other things, granted in part and denied in part the
motion of defendants for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this dental malpractice action
seeking damages for injuries allegedly arising from, inter alia, the
perforation of one of plaintiff’s teeth and the failure of Steve A.
Procopio, Jr., D.D.S. (defendant) to recognize and treat the
perforation. Defendants moved for summary judgment dismissing the
complaint, and plaintiff cross-moved pursuant to CPLR 3126 for
sanctions for the alleged spoliation of evidence and for partial
summary judgment. Plaintiff appeals and defendants cross-appeal from
an order that granted defendants’ motion in part and dismissed the
complaint with respect to three specific claims underlying plaintiff’s
malpractice cause of action, and denied plaintiff’s cross motion in
its entirety. We affirm.
We note at the outset that plaintiff appealed from only that part
of the order “awarding [defendants] partial summary judgment.” Thus,
we agree with defendants that plaintiff waived his right to appeal
from that part of the order that denied his cross motion. “ ‘An
appeal from only part of an order constitutes a waiver of the right to
appeal from the other parts of that order’ ” (Johnson v Transportation
Group, Inc., 27 AD3d 1135, 1135; see Shumway v Kelley, 60 AD3d 1457,
1459).
-2- 415
CA 16-01390
We reject plaintiff’s contention that Supreme Court erred in
granting defendants’ motion for summary judgment in part because
plaintiff raised issues of fact with the submission of an expert
affidavit in opposition. As the proponent of a motion for summary
judgment in this dental malpractice action, defendants had the initial
burden of establishing as a matter of law that there was no departure
from accepted standards of care or that plaintiff was not injured
thereby (see Terranova v Finklea, 45 AD3d 572, 572; Starr v Rogers, 44
AD3d 646, 647-648). Defendants did so by submitting plaintiff’s
medical records and defendant’s own affidavit, which was “ ‘detailed,
specific and factual in nature’ ” (Webb v Scanlon, 133 AD3d 1385,
1386). In his affidavit, defendant described his treatment of
plaintiff’s tooth and explained the absence of any deviations from
accepted standards of care with respect to the manner in which he
performed such treatment (see id.; Starr, 44 AD3d at 648). The
affidavit of plaintiff’s dental expert offered in opposition set forth
only generalized, conclusory and speculative opinions with respect to
three specific claims at issue, and thus it was insufficient to raise
a triable issue of fact with respect to those claims (see Snyder v
Simon, 49 AD3d 954, 956).
We reject defendants’ contention on their cross appeal that the
court should have granted their motion in its entirety. We conclude
that the conflicting expert affidavits raise issues of fact with
respect to whether defendant deviated from the accepted standards of
care by failing to take an X ray after the February 23, 2007 post and
crown placement procedure; failing to recommend X ray studies to
plaintiff between February 23, 2007 and March 3, 2011 and failing to
document plaintiff’s refusal of those studies; and failing to identify
and treat, or refer for treatment, a perforation of plaintiff’s tooth
that was allegedly depicted in an X ray film taken on March 3, 2011,
and which allegedly caused plaintiff to sustain bone loss requiring
multiple subsequent procedures (see generally Florio v Kosimar, 79
AD3d 625, 626).
Entered: April 28, 2017 Frances E. Cafarell
Clerk of the Court