The following papers numbered 1 to 6 were used on this motion this 15th day of February, 2011:

[001]Notice of Motion [Defendant Tsish].....................................................................1

[002]Notice of Motion [Defendants T & D and Flynn] ..................................................2

Affirmation in Opposition [Plaintiff].............................................................................3

Affirmation [Plaintiff]....................................................................................................4

Reply Affirmation [Defendant Tsish].............................................................................5

Reply Affirmation [Defendants T & D and Flynn] ..........................................................6

____________________________________________________________________ ____________

This dental malpractice action was commenced on or about June 26, 2009, alleging that the plaintiff suffered injuries after the defendants failed to properly treat her dental condition and failed to inform her of the risks of the procedures she underwent. Presently, issue has been joined, discovery is completed and the case is on the trial calender. The defendants are now separately moving for summary judgment seeking to dismiss the plaintiff's complaint.

It is undisputed that plaintiff, Laurie Doherty, presented to defendant David J. Flynn, D.D.S's office with complaints of tooth/face pain on January 27, 2007. The plaintiff was treated by Dr. Oksana Tsish who performed an x-ray and diagnosed plaintiff with an infection and recommended a full root canal. The root canal specialist was not available, therefore Dr. Tsish began to perform a pulpectomy to relieve the pain. Plaintiff stopped Dr. Tsish mid-procedure and left the office. At that time Dr. Tsish advised plaintiff she was prone to infection because the procedure was not completed but the plaintiff insisted on leaving.

Plaintiff presented again on January 29, 2007, with complaints of worsening pain. Dr. Tsish again saw the plaintiff, diagnosed her with facial cellulitis and an infection. Dr. Tsish immediately called Dr. Fang, an oral surgeon, for an emergency appointment. The plaintiff was then treated by Dr. Fang and various hospital staff unrelated to instance case. The plaintiff thereafter commenced this action alleging that the defendants acted negligently in their treatment rendered to her and as a result suffered, inter alia, cranial nerve injury, paresthesia, facial palsy and facial concavity.

I.Defendant Dr. Tsish's Summary Judgment Motion [001]

It is well settled that summary judgment is a drastic remedy that should not be granted [*2]where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Further, in a dental malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice [and that] departure was a competent producing cause of the injury" (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).

The defendant Dr. Tsish has established her prima facie entitlement to summary judgment by adducing expert opinion that she did not deviate from good and accepted dental practice in her treatment rendered to the plaintiff, Laurie Doherty (Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Defendant's expert, Dr. Andrea Schreiber, D.M.D., opined that Dr. Tsish did not deviate from accepted dental practice in the treatment rendered to the plaintiff. Specifically, Dr. Schreiber opined that Dr. Tsish treated the plaintiff appropriately in accordance with her infection.

In opposition, the plaintiff has failed to presented evidence sufficient to raise a triable issue of fact with respect to the treatment performed by defendant Dr. Tsish (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). The plaintiff submitted the redacted affirmation of a dental expert who opined that the defendant Dr. Tsish deviated from accepted dental practice in diagnosing an infection and "overinstrumentizing" the tooth which caused the plaintiff's injures. However, the affirmation is conclusory and lacks any factual support explaining why it was an alleged deviation (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept., 2007]; Germaine v. Yu, 49 AD3d 685, 687 [2d Dept., 2008]). The plaintiff's expert provides no evidence that the CT scans proved no infection was present and moreover, there is no proof that the alleged deviations by defendant Dr. Tsish were proximate cause of the plaintiff's injuries (id.). As a result, summary judgment is appropriate.

With respect to the claims of lack of informed consent against Dr. Tsish, it is well settled [*3]that to recover for a lack of informed consent cause of action the plaintiff "must allege that the wrong complained of arose out of some affirmative violation of plaintiff's physical integrity" and further that "a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]).

In opposition to the defendant's prima facie showing, the plaintiff has failed to present any evidence with respect to the lack of informed consent cause of action (id.). As a result, the cause of action against Dr. Tsish alleging lack of informed consent is hereby dismissed.

II.Defendant David Flynn, D.D.S. s/h/a David J. Flynn, D.D.S., Individually and doing business as T and D, LLC.'s motion [002]

The plaintiff does not oppose the motion with respect to defendants David J. Flynn, D.D.S., individually, nor does she oppose the motion as against defendant T AND D, LLC ^[FN1], and as such those portions of the motion will be granted without opposition.

The plaintiff does, however, oppose the motion as to vicarious liability claims against David J. Flynn, D.D.S., as employer of Dr. Tsish. Here, however, considering the case was dismissed as against Dr. Tsish, the claims of vicarious liability fall as well. Therefore, the defendants David J. Flynn, D.D.S. s/h/a David J. Flynn, D.D.S., Individually and doing business as T and D, LLC's motion is granted in its entirety.

Accordingly, it is hereby

ORDERED that the motion by defendant Dr. Tsish [001] for summary judgment is hereby granted in its entirety, and it is further

ORDERED that the motion [002] of defendant David Flynn, D.D.S. s/h/a David J. Flynn, D.D.S., Individually and doing business as T and D, LLC's is hereby granted in its entirety, and it is further

ORDERED that the complaint is dismissed as against all defendants, and it is further

ORDERED that the Clerk enter Judgment accordingly.

Dated: 3/15, 2011E N T E R,

____________________________________Hon. Judith N. McMahon

Justice of the Supreme Court