Motion Sequence Numbers 005 and 006 are consolidated for disposition. In Motion Sequence Number 005, No Young, D.D.S., moves for leave to renew his motion for summary judgment, which was denied in this court's decision and order dated January 12, 2011, due to defects in the form of his expert's opinion, and upon renewal, for summary judgment dismissal of the claims against him, pursuant to C.P.L.R. Rule 3212. In Motion Sequence Number 006, Antonio Thomas International Corp. d/b/a Vital Dent ("Vital Dent") also moves for leave to renew its motion for summary judgment, which was also denied in this court's decision and order dated January 12, 2011, due to the fact that it was predicated on Dr. Young's expert opinion.

Renewal is proper if the original motion was denied due to a failure to submit an expert's opinion in the form of an affirmation or affidavit. Cespedes v. McNamee, 308 AD2d 409, 410 (1st Dep't 2003); Arkin v. Resnick, 68 AD3d 692, 694 (2d Dep't 2009). Dr. Young's attorney [*2]concedes that, on her prior motion, her expert's affidavit and Dr. Young's affidavit were not in the proper forms, but maintains that these defects were inadvertent oversights, and asks that she be permitted to resubmit her motion with the supporting affidavits in proper form. Plaintiff did not oppose these branches of defendants' motions. Accordingly, renewal is granted, and the court will reach the merits of defendants' motions for summary judgment.

This action sounds in dental malpractice and lack of informed consent. Plaintiff first presented to Vital Dent in September 2007, for dental treatment and restoration. The treatment plan formulated upon his first visit included twelve restorations (fillings); crown and bridge work; bleaching and veneers; root canals at teeth numbers 31 and 18; and the extraction of tooth number 32. Heidi Zuckerman, D.M.D., performed the majority of the work in plaintiff's treatment plan. On September 21, 2007, Dr. Young performed a root canal on tooth number 31 (molar on right lower jaw) and an extraction of tooth number 32 (wisdom tooth on right lower jaw).^[FN1] Dr. Young testified that in performing the root canal on tooth number 31, he locally anesthetized the area; placed a rubber dam on the tooth and created an access point through the occlusal surface of the tooth; cleaned out the roots and reshaped the canals; placed gutta percha; took a working x-ray to determine that the apex was entirely cleaned out; and finished by sealing the tooth and placing temporary filling material to cover the tooth. The post core and crown were to be finished later by Dr. Zuckerman. The extraction was then performed on the impacted wisdom tooth (tooth number 32) and closed with an absorbable suture. The remainder of the treatment—including a full mouth whitening procedure with hydrogen peroxide on September 28, 2007 and the application of a number of veneers on other teeth on October 31, 2007—was performed by Dr. Zuckerman or other Vital Dent treaters.

The treatment records reflect that three days after the extraction and root canal, plaintiff complained of numbness on the right mandible (lower jaw). Vital Dent called Dr. Young while he was on vacation to inform him of the parasthesia. Apparently, Dr. Young and Mr. Rojo discussed the parasthesia over the telephone several times, as reflected in Dr. Young's notes memorializing the conversations. On October 14, 2007, plaintiff complained to Dr. Young about his numbness on the lower right jaw, stated that he had contacted a malpractice attorney, and asked for a refund of the payments he had made because Vital Dent had closed the office location at which plaintiff had been receiving his treatment. In a note dated the next day, Dr. Young wrote that he had telephoned plaintiff and left a message on his voicemail regarding a follow-up appointment. In a note dated October 17, 2007, Dr. Young wrote that he had contacted plaintiff to discuss the prognosis of the numbness and that he had told plaintiff that he had, indeed, signed a consent form, although plaintiff replied that the form did not list nerve damage. Dr. Young's notes reflect that during this conversation, plaintiff agreed that Dr. Young had discussed with him, prior to the procedure, possible temporary or permanent damage to the nerve due to the proximity of the nerve to the tooth. During this conversation, Dr. Young told plaintiff that if the numbness did not resolve by the eighth week, he would refer plaintiff to an oral surgeon or nerve specialist to see if the nerve could be repaired. Plaintiff agreed to return to the office on October [*3]19 for a follow-up. The treatment records reflect that plaintiff did present to Dr. Young for one follow-up visit on October 19, 2007, where Dr. Young noted partial parasthesia in the middle of plaintiff's right lip.^[FN2] Dr. Young also performed an x-ray on October 19, and he testified at his examination before trial ("EBT") that he was unable to identify any nerve damage or significant findings on the film, but that plaintiff's complaints indicated that the inferior alveolar nerve might have been affected. Dr. Young's notes reflect that he had one more telephone conversation with plaintiff on November 8, 2007, when plaintiff stated that sensation was returning and Dr. Young encouraged plaintiff to come in for a follow-up visit. Dr. Young's final note on December 15, 2007, indicates that plaintiff never returned for a follow-up visit. The billing records reflect that plaintiff last received any treatment at Vital Dent on October 31, 2007. Plaintiff testified that at that point, he did not want any more work done at Vital Dent and no longer wanted to deal with Vital Dent, even though his treatment plan was not complete at that point.

Dr. Young testified that he did not have plaintiff sign a consent form for the root canal but that he did discuss the alternative treatments to a root canal, advised him of the success rates of root canal therapy, and informed him of the risks such as chance of failure, breakage, and infection. Plaintiff apparently signed a "Consent for Oral Surgery and Anesthesia" form for the September 21, 2007 extraction, although the form does not specifically identify any procedure to be performed; it authorizes "Dr. Ahmad Chaudhry" to perform the procedures, not Dr. Young; and plaintiff testified that he recalled signing the form after he was locally anesthetized between the root canal and the extraction. Also, Dr. Young testified that prior to the extraction, he discussed the proximity of the nerve to the tooth being extracted. He testified that he showed plaintiff a digital x-ray of the tooth to be extracted, showed him where the nerve was, and said, "this is a little bit close to the nerve, but I've taken thousands of these out, and I hope you're not going to be any problem, but it's going to be pretty quick and easy and it should be painless because you already know." Dr. Young testified that the patient then agreed to the extraction and executed the consent form mentioned above. In his EBT, plaintiff testified that he was not fully informed about the potential for nerve damage.

Plaintiff alleges that Dr. Young departed from good and accepted dental practice by failing to perform a proper dental evaluation; failing to obtain plaintiff's informed consent to the surgeries he performed; failing to refer plaintiff for an endodontic consultation; failing to extract tooth number 32 in a proper and safe manner; failing to properly perform indicated multiple root canal treatments, bridges, and veneer procedures; failing to order and provide a mouth guard; ignoring plaintiff's signs and symptoms of numbness on the right side of his face and pain after the whitening procedure; and failing to subsequently schedule, treat, and care for plaintiff, thereby abandoning him as a patient. The allegations are identical against Vital Dent, except that plaintiff adds that Vital Dent departed from the standard of care in failing to formulate and administer a proper treatment plan and failing to supervise and monitor its employees. Plaintiff further alleges that Dr. Young is vicariously liable for the negligent acts and/or omissions of dentists, dental staff, and employees. Plaintiff claims that he suffers from permanent lingual [*4]nerve root damage and right-sided numbness to his lips, lower chin, gums and jaw.

A defendant moving for summary judgment in a dental malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing "that in treating the plaintiff there was no departure from good and accepted [dental] practice or that any departure was not the proximate cause of the injuries alleged." Roques v. Nobel, 73 AD3d 204, 206 (1st Dep't 2010) (citations omitted). See also Koi Hou Chan v. Yeung, 66 AD3d 642 (2d Dep't 2009). To satisfy the burden, a defendant in a dental malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations in the bill of particulars. Roques, 73 AD3d at 206; Koi Hou Chan, 66 AD3d at 642. Conclusory statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment. See Cregan v. Sachs, 65 AD3d 101, 108 (1st Dep't 2009). Failure to demonstrate a prima facie case requires denial of the summary judgment motion, regardless of the sufficiency of the opposition papers. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986) (citation omitted). If the movant makes a prima facie showing, the burden shifts to 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." Id. (citation omitted). Specifically, in a dental malpractice action, a plaintiff opposing a summary judgment motion

must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiff's injuries. . . . In order to meet the required burden, the plaintiff must submit an affidavit from [an expert in dental care] attesting that the defendant departed from accepted [dental] practice and that the departure was the proximate cause of the injuries alleged.

Roques, 73 AD3d at 207 (internal citations omitted). A defendant moving for summary judgment on a lack of informed consent claim must demonstrate that the plaintiff was indisputably informed of the foreseeable risks, benefits, and alternatives of the treatment rendered, and "that a reasonably prudent patient would not have declined to undergo the [procedure] if he or she had been informed of the potential complications[.]" Koi Hou Chan, 66 AD3d at 643; see also Public Health Law § 2805-d(1). To rebut a defendant's prima facie showing that he is entitled to summary judgment on the issue of informed consent, a plaintiff must demonstrate, through competent evidence, that the "doctor failed to disclose a reasonably foreseeable risk; that a reasonable person, informed of the risk, would have opted against the procedure; that the plaintiff sustained an actual injury; and that the procedure was the proximate cause of that injury." Orphan v. Pilnik, 66 AD3d 543, 544 (1st Dep't 2009).

Dr. Young contends that he is entitled to summary judgment because he did not deviate from accepted standards of dental practice; did not proximately cause plaintiff's dental injuries; did not abandon plaintiff; is not vicariously liable for the acts and/or omissions of fellow employees; did not have sufficient reason to refer plaintiff for endodontic treatment; and did not provide plaintiff with veneers, mouth guards, bridges, or whitening procedures. In support of his motion, Dr. Young presents the expert opinion of Douglas Monasebian, M.D., D.M.D., who sets forth that he is a duly trained plastic and reconstructive surgeon and oral and maxillofacial [*5]surgeon licensed to practice in the State of New York and board certified in plastic and reconstructive surgery and oral and maxillofacial surgery. Dr. Monasebian sets forth that his opinion is based on his knowledge and experience, and his review of the pleadings, bills of particulars, Vital Dent's records, subsequent treatment records from three other treaters (whose records are not annexed to either defendant's papers), and the parties' EBT testimony. He opines that the allegations in the bill of particulars regarding bridgework, veneers, whitening procedures, or mouth guards do not apply to Dr. Young, as Dr. Young only undertook to perform the root canal on tooth number 31 and the extraction of tooth number 32. He goes through the records and Dr. Young's testimony regarding his performance of the procedures on September 21, 2007, and opines that these procedures were performed appropriately, properly, and without negligence, and that informed consent was obtained prior to each procedure. Dr. Monasebian opines that the extraction of tooth number 32 was within Dr. Young's experience and skill level, based on Dr. Young's testimony that he had performed thousands of extractions during his career and given that there was no indication that the extraction necessitated referral to an oral surgeon. He states that the injury described by plaintiff—numbness in the area of the lower lip and chin—is residual numbness in an isolated area, which he opines is a known and accepted outcome of an extraction procedure, even in the absence of negligence, and that it is usually temporary but may be permanent. Dr. Monasebian opines that Dr. Young did not abandon plaintiff, but that plaintiff discontinued treating at Vital Dent before completing other aspects of his treatment for which Dr. Young was not responsible. He also opines that Dr. Young appropriately addressed plaintiff's complaints regarding numbness after the procedures and properly advised plaintiff to follow-up, which plaintiff did not do. Dr. Monasebian opines, to a reasonable degree of medical certainty, that Dr. Young did not depart from accepted standards of dental care in treating plaintiff and that the care and treatment rendered by Dr. Young was not the proximate cause of plaintiff's "purported injuries."

Although Dr. Monasebian barely addresses the issue of proximate cause and only does so in a conclusory manner, he does set forth, in a thorough and nonconclusory manner, that Dr. Young's treatment was at all times appropriate and properly performed. Dr. Monasebian's opinion that Dr. Young did not depart from the standard of care demonstrates a prima facie entitlement to summary judgment. The burden shifts to plaintiff to rebut Dr. Young's showing that there were no deviations from the standard of care.

Plaintiff's expert (name redacted) sets forth that he/she is duly licensed to practice dentistry in the State of New York and board certified in forensic dentistry. The expert sets forth that he/she reviewed plaintiff's dental records and radiograph study photocopies, the verified and supplemental verified bills of particulars, and the parties' EBT transcripts. Plaintiff's expert sets forth that it is good and accepted dental practice to refer extractions of impacted wisdom teeth (such as plaintiff's tooth number 32) to a licensed oral surgeon and that it is standard dental practice to refer a root canal to an endodontist when the subject tooth is adjacent to a tooth requiring surgical treatment. Plaintiff's expert sets forth that patients with a combination of an impacted tooth number 32 and an adjacent tooth number 31 needing a root canal therapy require treatment and care by the respective specialists in the field because the teeth are situated near the [*6]mandibular nerve and its branches, and because any damage to the nerve tissue can cause parasthesia, numbness, and pain. Plaintiff's expert opines that it was a departure from the standard of care for Dr. Young to fail to refer plaintiff to the proper specialists for the procedures and that it was negligent to perform both procedures on the same day because that increased plaintiff's risk of developing nerve damage, facial pain, and numbness. The expert further opines that Dr. Young's failure to promptly refer plaintiff to an oral surgeon or a neurologist to address the development of the parasthesia and numbness after the procedure was a departure from the standard of care. The expert concludes that plaintiff's injury was caused by Dr. Young's negligent treatment and care of plaintiff's abnormal dental conditions and that, had Dr. Young referred plaintiff to the right specialists, the nerve damage would have been avoided or minimized. The expert states that plaintiff was deprived of the opportunity to have the resulting nerve damage promptly observed, diagnosed, and repaired.

In reply, defendants argue that plaintiff's expert's affidavit is conclusory; that plaintiff's attempt to raise an issue of fact as to whether it was proper to perform the extraction and the root canal on the same day is improper because plaintiff never made this allegation in his bills of particulars; and that, in general, plaintiff's expert failed to rebut Dr. Young's prima facie showing of entitlement to summary judgment and failed to demonstrate proximate cause between the departures and the injuries.

Plaintiff has sufficiently raised issues of fact including but not limited to whether the procedures were performed in a proper and safe manner in accordance with the standard of care; whether Dr. Young's evaluation of the extraction as a "quick and easy" procedure was a deviation from good and accepted dental treatment; and whether the post-extraction care deviated from good and accepted dental treatment. The allegations in plaintiff's bills of particulars that the procedures were not performed in a proper and safe manner encompass plaintiff's expert's theory that Dr. Young's decision to perform the procedures back-to-back was neither proper nor safe. Further, since Dr. Monasebian did not opine on the issue of proximate cause beyond his conclusory statement that Dr. Young's treatment did not proximately cause plaintiff's injury, plaintiff was not obligated to demonstrate an issue of fact on this issue; rather, in order to defeat summary judgment, plaintiff was obligated only to raise issues of fact to rebut defendants' assertion that Dr. Young did not depart from the standard of care. However, given that Dr. Young's treatment was limited to the root canal on tooth number 31 and extraction of tooth number 32, and that plaintiff raised no issues regarding Dr. Young's care regarding root canals other than on tooth number 31, fillings, veneer work, bridge work, or mouth guards, these claims against Dr. Young are dismissed. Further, Dr. Young has asserted that, as an employee of Vital Dent, he is not vicariously liable for dental work performed by other employees of Vital Dent. Dr. Young would not be liable for treatment that he did not render or supervise in conjunction with the root canal on tooth number 31 or the extraction of tooth number 32, and plaintiff has not responded with any claim that he is vicariously liable for other employees' treatment in conjunction with the root canal on tooth number 31 or the extraction of tooth number 32. Accordingly, any claims sounding in Dr. Young's vicarious liability for other employees' treatment are dismissed.

As to the claim of lack of informed consent, Dr. Young heavily relies on the "Consent for [*7]Oral Surgery and Anesthesia" form that plaintiff executed on September 21, 2007 to establish that plaintiff was informed that permanent numbness was a risk of the extraction and consented to the procedure despite this risk. This purported consent form is not competent evidence that plaintiff was indisputably informed of the risks of the extraction, as it authorizes "Dr. Ahmad Chaudhry" to perform the procedures, not Dr. Young, and it fails to identify the procedure for which plaintiff gave his consent. Indeed, in the blank space where the consented-to procedures are to be filled out, there is only a large cross-out over the space. Further, Dr. Monasebian sets forth that residual permanent numbness is a known and accepted outcome of an extraction procedure; if that is the case, it raises an issue of fact as to whether it was necessary to specifically impart this information in order for a reasonable person to make an informed decision about going through with the extraction. As issues of fact remain unresolved, Dr. Young did not demonstrate his prima facie entitlement to summary judgment on the issue of informed consent.

Since Vital Dent's motion for summary judgment is predicated on Dr. Young's entitlement to summary judgment, Vital Dent's motion is denied for the reasons set forth above. Accordingly, it is hereby

ORDERED that defendants' respective motions for leave to renew their motions for summary judgment are granted; and it is further

ORDERED that, upon renewal, the Court denies both motions for summary judgment, except that the claims against Dr. Young and Vital Dent (as Dr. Young's employer) related to care regarding root canals other than tooth number 31, fillings, veneer work, bridge work, or mouth guards, and pertaining to allegations that Dr. Young is vicariously liable for other employees' treatment, are dismissed in accordance with the above decision; and it is further

ORDERED that the parties shall appear for a pre-trial conference on July 12, 2011, at 9:30 a.m., in Part 6.

Dated: June, 2011

Joan B. Lobis, J.S.C.