The plaintiff alleges that part of a rotary file was left buried beneath her tooth during a root canal. She has commenced this action against the dentist who performed the root canal, Defendant Walsh, as well as another dentist at the same dental practice, Defendant Dodd, who provided subsequent treatment for her tooth pain. The issue presented is whether Dr. Dodd is entitled to summary judgment or whether a trial is necessary to resolve a genuine issue of material fact.

In late-September 2022, the plaintiff called her dentist's office complaining of tooth pain. [*2]The defendants' records reflect that a phone call occurred on September 29. According to a note contained in the records (documented by "bm"), the plaintiff's regular dentist, Dr. Dodd, was out of the office that day, and another dentist at the practice (Dr. Paul) suspected that the plaintiff might need a "RCT" (root canal therapy). The notes indicate that the plaintiff was provided with phone numbers for root canal doctors; that she was prescribed Amoxicillin and Ibuprofen; and that the staff forwarded an x-ray of the plaintiff's teeth to Dr. Walsh to review in case he was able to perform the root canal. The notes also reflect that the plaintiff had an appointment scheduled with another provider (cap district endo) for October 11.

When asked about the September 29 phone call, the plaintiff did not remember if she was provided with contact information for other dentists. She did not believe it was during "the initial phone call" (Plaintiff's Dep. Trans., at p. 37). The plaintiff recalled having a conversation with a staff member named "Doug," who told her that he "spoke with Dr. Dodd" and that they could send her to "the root canal experts" in Albany (id. at p. 39). When asked again if she was provided the names of any endodontists (root canal specialists), the plaintiff testified that she "could have been" given this information (id. at p. 131). She did not know "when in the conversations, but they gave [her] a dentist that they work with" and they also had "some conversation for a [CBCT] scan" (id. at pp. 131-132). She apologized for not remembering "which one [conversation]" (id. at p. 132).

Around this time in late-September, the plaintiff also began investigating the names of dentists to perform the root canal. She called several of them. The other dentists, however, did not have any immediate availability. Ultimately, Dr. Walsh performed the root canal.

The plaintiff alleges that on October 3, 2022, during the first part of the root canal, the rotary drill bit operated by Dr. Walsh broke off in the canal of her tooth and perforated the pulp chamber, where it remained lodged. After the procedure, the plaintiff's tooth was still in excruciating pain. After the pain persisted, the plaintiff allegedly called the defendants' dental practice numerous times to complain of pain.

Dr. Walsh saw the plaintiff again on November 4, 2022, when he completed the second part of the root canal procedure. When Dr. Walsh finished the procedure, he took an x-ray of the tooth on November 4, 2022. Although Dr. Walsh did not remember this day, he explained that the broken rotary file's existence was not apparent from the x-ray without knowing that it was present.

The following week, on or about November 11, the plaintiff called the defendants' practice to let them know that her pain was persisting. The notes in the defendants' records (documented by staff member Chanel) state, as follows: "Patient called in today stating she is still having severe pain on [her tooth] Dr. Dodd had me call in a script for [Amoxicillin] and give a referral to RCE" (the Root Canal Experts). Dr. Dodd testified that this was his first involvement in the plaintiff's care since he installed a temporary crown on her tooth on September 23, 2022.

Dr. Dodd testified that he prescribed antibiotics and reviewed the plaintiff's November 4 x-ray in response to the plaintiff's complaints on November 11. He explained that he did not see the broken rotary file on the November 4 x-ray when he reviewed it. Dr. Dodd testified that he recommended that the plaintiff visit a specialist and have a CBCT scan/x-ray (Cone Beam Computed Tomography), which required a machine that his office did not have at the time.

Dr. Dodd further testified that he called the Root Canal Experts (another provider) and obtained their agreement to provide the plaintiff with the CBCT scan/x-ray and a consultation at [*3]no charge. He further believed that the plaintiff was informed of this, although he admittedly did not know for certain whether the staff member who spoke to the plaintiff actually provided her with the referral.

During her deposition, the plaintiff did not remember whether she was provided with a referral to an endodontist or oral surgeon during the November 11 phone call (Plaintiff's Dep. Trans., at pp 134-135). When asked about her recollection of the call, the plaintiff testified that she complained of pain and did not remember "the other conversation, but she [the staff member, Chanel] was going to check with Dr. Dodd" (id. at p. 74). She did not "know if it was in that conversation or if [Chanel] called [her] back , but [Chanel] said that Dr. Dodd said to call in amoxicillin" (id.).

The plaintiff recalled being disappointed that she had to take this medication again because it previously gave her an upset stomach. Plaintiff testified that she obtained the medicine from CVS, however, she did not recall how much she consumed. She recalled that her tooth began feeling better at some point. At the time, she thought it maybe "just needed to get adjusted or something" (Plaintiff's Dep. Trans., at p. 76). Before her next appointment (December 5), the plaintiff also asked Chanel if Dr. Walsh could be her primary dentist.

On December 5, 2022, the plaintiff met with Dr. Walsh again. The plaintiff contends that she was still experiencing pain at this time. During the visit, Dr. Walsh installed a permanent crown on the subject tooth and adjusted her bite by grinding down on the crown. Following that appointment, the plaintiff testified that she continued to experience severe tooth pain.

On December 12, 2022, Dr. Walsh adjusted her bite again by grinding down on the crown and the tooth directly above it which did not have a crown. The plaintiff met with Dr. Dodd the following day, on December 13, 2022. According to the dental records and Dr. Dodd's testimony, Dr. Dodd discussed making further occlusal adjustments and obtained oral consent to the procedure.^[FN1] The notes in the defendants' records further state that the plaintiff was satisfied with the results and that she would be provided at her next visit with new impressions for the crown at no charge. Specifically, the note reads, as follows: "Next visit: New Impressions for crown on T#18 @ no charge per GPD."

The plaintiff testified that during the December 13 visit, Dr. Dodd told her that the permanent crown had been put in incorrectly (by Dr. Walsh) and that they would replace it in a few months without charge. She testified that Dr. Dodd said he was going to shave a little bit off and that he proceeded to shaved off both the crown and part of the tooth above the crown. She allegedly told Dr. Dodd that he may need to shave a little more because it still did not feel right, and Dr. Dodd allegedly said, "Okay" and took a little more off. Then Dr. Dodd allegedly said, "Okay. I'm not going to shave anymore" (Plaintiff Dep. Trans., at p. 98). The plaintiff alleges that she was given Dr. Dodd's personal phone number and told to call him if the tooth pain persisted.

When asked about this visit, Dr. Dodd testified that at the time he did not know that there was a broken rotary file in the tooth canal. He explained that he made only occlusal adjustments that day. He testified that he "only adjusted the crown because [the plaintiff] thought that the adjustment that Dr. Walsh [made the prior] day had made a significant difference" (Dodd Dep. Trans., at p. 81). According to Dr. Dodd, he did not do anything that day that affected the anatomy of the plaintiff's original teeth. The adjustment took about 30-40 minutes.

During his testimony, Dr. Dodd opined that another (two-dimensional) standard x-ray was not warranted during the December 13 visit, especially considering that the plaintiff had recently been exposed to an x-ray on November 4, 2022 after the root canal (as well as two other x-rays in September 2022). He believed that the results from a (three-dimensional) CBCT scan/x-ray would likely provide better insight into the problem than a (two-dimensional) standard x-ray, however, his office did not have the machine at the time.

According to Dr. Dodd, he told the plaintiff that he did not know what was going on with the tooth without the benefit of a CBCT, but the pain seemed to be a lot due to the way the tooth was fitting the adjacent tooth. Dr. Dodd testified that the only way to see inside the tooth without a CBCT would be to take the crown off and get into the pulp chamber, and that he offered to do this as soon as possible at no charge to the plaintiff.

On December 15, the plaintiff visited a different dental practice. According to the plaintiff, the dentist, Dr. O'Brien, took a bite wing x-ray during this visit, and the x-ray taken on that day revealed a sharp object in the image that was a different color than her teeth. The tooth was then extracted, at which point the plaintiff could see the broken drill bit protruding from the tooth. The plaintiff then watched Dr. O'Brien proceed to break open the tooth to remove the drill bit.

The plaintiff testified that she originally visited Dr. O'Brien's office because she was told that she "needed a CBCT scan" (Plaintiff's Dep. Trans., at p. 104). According to the plaintiff, Dr. O'Brien's office "said they did those type of scans" (id.). When responding to questions relating to the defendants' practice, the plaintiff testified that she did not recall what was said about a CBCT, except that it was a certain x-ray that "they don't do" and that she would "have to go to a different office to get it" (id. at 136). When asked if they discussed the reason for getting a CBCT, the plaintiff testified that it "might have been in one of the conversations where I told them I was in pain" (id.). She believed that Chanel told her that she may need the CBCT. She did not remember if a dentist at the practice told her that she needed a CBCT.

As for the malpractice allegations against Dr. Dodd, the plaintiff alleges that Dr. Dodd acted negligently on September 29, November 11, and December 13, 2022.^[FN2] The complaint alleges that Dr. Dodd failed to review the plaintiff's dental history and x-rays; improperly treated her complaints of pain; and unnecessarily filed her upper teeth. The crux of these allegations in the complaint are as follows:

September 29, 2022: "That upon [notifying Dr. Dodd's office of] her tooth complaints [in September], Plaintiff was advised that she would likely need a root canal and was provided a prescription for Amoxicillin and Ibuprofen to relieve pain until the root canal [*4]procedure could occur."

November 11, 2022: "Upon receipt of the pain complaint [in November], and upon information and belief, without reviewing Plaintiff's dental history or recent x-rays, [Dr. Dodd] simply supplied Plaintiff with an additional prescription for antibiotics."

December 13, 2022: "Upon information and belief, [prior to filing the plaintiff's upper teeth to adjust her bite, Dr. Dodd] did not review the November 4, 2022 x-rays, which would have revealed the broken rotary file lodged in Plaintiff's canal and which had perforated the chamber floor."

As for additional specifics, the bill of particulars further alleges that Dr. Dodd "ignored the claims of pain and simply prescribed antibiotics;" that he did not take timely x-rays; that he "failed to note or identify that a rotary file was left in the canal;" that he filed the upper teeth unnecessarily and improperly; and that he failed to obtain informed consent before filing the upper teeth.

In support of the motion, Dr. Dodd has submitted the parties' deposition transcripts, dental records, and an expert affirmation from a board-certified endodontist, among other things. In opposition, the plaintiff has submitted an affidavit from herself, the same deposition transcripts and dental records relied upon by Dr. Dodd, a photocopy of the November 4 x-ray, and photographs, among other things. The plaintiff has not submitted an expert affirmation. Rather, the plaintiff challenges the factual basis for the opinions made by Dr. Dodd's expert.

Summary judgment is a drastic remedy (see Smero v City of Saratoga Springs, 160 AD3d 1169, 1170 [3d Dept 2018]). The motion should be denied if any doubt exists as to whether a material factual issue exists or where the issue is even arguable (see id.; Hierro v Bliss Co., 145 AD2d 731, 732 [3d Dept 1988]). In reviewing the motion papers, the courts must view the evidence in the light most favorable to the nonmoving party, focusing on issue finding rather than issue determination (see Smero, 160 AD3d at 1170).

A defendant dentist seeking summary judgment in a dental malpractice action bears "the initial burden of establishing that there was no departure from accepted standards of practice or that plaintiff [was] not injured thereby" (Cho-Bodnar v Adirondack Maxillofacial Surgery, 215 AD3d 1101, 1102-1103 [3d Dept 2023] [internal quotation marks, alterations, and citations omitted]; see Menard v Feinberg, 60 AD3d 1135, 1136 [3d Dept 2009]; 9 Bender's Forms of Pleading § 136.01 [2025]). Expert opinions should have a proper evidentiary foundation and avoid assuming the truth of material facts in dispute (see Winegrad v NY Univ. Med. Ctr., 64 NY2d 851, 852-853 [1985]; Stiso v Berlin, 176 AD3d 888, 890 [2d Dept 2019]; Kubera v Bartholomew, 167 AD3d 1477, 1480 [4th Dept 2018]; Sepesi v Watson, 124 AD3d 1021, 1022 [3d Dept 2015]).

If the defendant satisfies this standard, the burden then shifts to the plaintiff to submit evidentiary facts or materials to "establish issues of fact as to a departure from accepted dental practice and a nexus between the malpractice and injuries alleged" (Cho-Bodnar, 215 AD3d at 1104-1105 [internal quotation marks and citations omitted]; see CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]; Menard, 60 AD3d at 1137). General allegations of dental malpractice, merely conclusory and unsupported by competent evidence, are insufficient to [*5]defeat the motion (see Alvarez, 68 NY2d at 325).

As it relates to September 29, Dr. Dodd has satisfied his initial burden. The deposition transcripts, dental records, and expert affirmation submitted in support of the motion establish that Dr. Dodd either was not involved in the plaintiff's care on this date (and therefore did not act negligently) or that his involvement was minimal and did not cause any injuries. In this regard, the only evidence of Dr. Dodd's involvement on this date concerns the plaintiff's testimony that she heard from Doug that he "spoke with Dr. Dodd" and that they could send her to "the root canal experts" in Albany. Even assuming this occurred, the plaintiff has failed to articulate how this alleged conversation deviated from the standard of care or caused her any injuries. Nor does any evidence exist that any deviation or injury occurred on this date (or any time before the root canal). To the contrary, the dental records and deposition testimony indicate that the plaintiff received appropriate care on this date. She was prescribed medicine; informed of the need for a possible root canal; provided with the names and phone numbers of dentists; and ultimately received prompt treatment for her tooth pain.

In opposition, the plaintiff has failed to rebut Dr. Dodd's prima facie showing. Rather, the plaintiff misplaces reliance on the apparent confusion over whether Dr. Dodd was involved in her care on September 29, while again failing to articulate how Dr. Dodd or anyone else from his office acted negligently on this date. Accordingly, this allegation of malpractice rests on speculation and therefore fails to create a triable issue of fact (see CPLR 3212; Alvarez, 68 NY2d at 325).

Turning to November 11, the moving submissions refute the plaintiff's conclusory allegations that x-rays were not timely taken; that Dr. Dodd failed to review the plaintiff's x-rays and dental history; and that Dr. Dodd ignored the plaintiff's complaints of pain. The proof establishes that two x-rays were taken in September 2022; that another x-ray was taken on November 4, 2022; that Dr. Dodd knew about and reviewed the plaintiff's dental history and x-rays; that he prescribed antibiotics in response to the plaintiff's complaints; and that he made recommendations for further evaluation.

The moving submissions further refute the plaintiff's bald allegation that a review of the November 4 x-ray "would have revealed the broken rotary file." Dr. Dodd testified that he reviewed this x-ray and did not observe the broken rotary file when he initially reviewed it. His testimony, as well as Dr. Walsh's testimony, further indicates that the existence of the broken rotary file was not apparent from the November 4 x-ray without knowing that it was present in the canal. Dr. Dodd further explained that he had no reason to believe that a drill bit had broken off in the canal and, as such, he did not believe that another standard x-ray would reveal any additional information pertinent to diagnosing the cause of the tooth pain. Moreover, although Dr. Dodd's expert did not explicitly opine on the proper reading of the x-ray, the plaintiff's counsel clarified at oral argument that he was not alleging that Dr. Dodd misread the x-ray, but rather that Dr. Dodd should have referred the plaintiff to a specialist (see Transcript of Oral Argument from March 13, 2025, at p. 6).

Turning to the expert affirmation, Dr. Dodd's expert opines that Dr. Dodd appropriately reviewed diagnostic imaging, prescribed antibiotics to address potential infection, and made timely recommendations for a specialist evaluation. According to the expert, the standard of care requires general dentists to recognize their limitations and refer patients to specialists when necessary. He opines that Dr. Dodd satisfied this obligation by recommending that the plaintiff visit a specialist.

Contrary to the plaintiff's contention, this opinion is adequately supported by the record.In fact, the dental records from November 11 explicitly state that "Dr. Dodd had [his staff member, Chanel] .... give a referral to RCE."^[FN3] Also, Dr. Dodd testified that he would have had to remove the permanent crown if he wanted to better understand the reason for the plaintiff's tooth pain, and that he determined that the preferred course of treatment was instead for the plaintiff to consult with a specialist. Dr. Dodd explained that he believed that the plaintiff had a possible infection and recommended a CBCT scan, which he could not perform at his practice. When asked if his staff member gave the plaintiff the referral, he testified that he did not know for sure, but that "she [Chanel] doesn't make it a habit of not doing what we tell her, which is why she's still here" (Dodd Dep. Trans., at p. 70). Critically, when questioned at her deposition, the plaintiff did not deny being informed of this information. To the contrary, the plaintiff recalled discussing the CBCT scan with a staff member and simply could not remember whether she was provided the referral.

Although the plaintiff has since denied receiving the referral on November 11, she relies on one sentence in a self-serving affidavit that was prepared months later and directly contradicts her prior deposition testimony. This sentence is set forth in paragraph 37 of her affidavit, as follows:

"37. About a week after the November 4th appointment, I called [the practice] to let them know that the severe pain was still persisting. At no point was I referred by anyone at [the practice] to an endodontist" (emphasis added).

As the affidavit is written, it is unclear whether the plaintiff's recollection of the conversation has improved, or whether she is denying that she received a referral based on her inability to remember it. In any event, the affidavit is exceedingly vague on this issue and does not contain any explanation for the change. Under these circumstances, the Court agrees with Dr. Dodd that the affidavit fails to create a genuine issue of fact for trial (see Valenti v Exxon Mobil Corp., 50 AD3d 1382, 1384 [3d Dept 2008]; Rossi v 88th Garage Corp., 190 AD3d 504, 505 [1st Dept 2021]; Ventura v County of Nassau, 175 AD3d 620, 621-622 [2d Dept 2019]; see also Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049 [2016]; Sutin v Pawlus, 105 AD3d 1293, 1295 [3d Dept 2013]). Nor does any of the other evidence submitted by the plaintiff create a triable issue of fact.

Notwithstanding, the Court would prefer a more developed record on this issue given the plaintiff's allegation that Dr. Dodd's staff failed to communicate the recommendation/referral to her in response to her complaints of pain on November 11. Specifically, the Court desires an [*6]affidavit from the staff member (Chanel) who made the note in the dental records for November 11, or an explanation as to why it cannot be provided. As this information will assist the Court in determining whether a trial is necessary, Dr. Dodd is granted permission to supplement his papers to addresses this issue if he so desires.

Turning to the care provided by Dr. Dodd on December 13, the plaintiff alleges that Dr. Dodd improperly filed down her upper teeth. However, even assuming Dr. Dodd filed down the plaintiff's upper teeth (which he disputes), the dental records and Dr. Dodd's testimony establish that the procedure was routine and appropriate based on the then-available information. In opposition, the plaintiff's proof is utterly non-existent. In fact, the plaintiff has not even explained how Dr. Dodd performed the procedure improperly. Accordingly, no triable issue of fact exists on this issue.

Further, as to the allegation that the procedure was unnecessary, the record evidence indicates that Dr. Dodd appropriately elected to perform this procedure based on the then-available information. As no evidence exists to the contrary, this part of the malpractice claim is not viable. Nevertheless, if Dr. Dodd failed to properly care for the plaintiff's tooth pain (an issue discussed above), the plaintiff may be able to seek damages for having to endure the adjustment/filing. The Court, however, declines to resolve this issue until it receives the supplemental proof requested.

Further, Dr. Dodd seeks summary judgment on the cause of action alleging that he failed to obtain her informed consent (see Public Health Law § 2805-d; see also 9 Bender's Forms of Pleading § 136.01). The plaintiff does not address Dr. Dodd's arguments regarding the lack of informed consent claim, and therefore this portion of the motion is unopposed. Nonetheless, a "failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that involves invasion or disruption of the integrity of the body" (Lewis v Rutkovsky, 153 AD3d 450, 456 [1st Dept 2017] [internal quotation marks, brackets, and citation omitted]; see also Public Health Law § 2805-d § 2805-d [2], [3]). Here, the alleged invasion/disruption concerns Dr. Dodd's alleged filing of the plaintiff's upper teeth. However, the dental records and Dr. Dodd's testimony demonstrate that Dr. Dodd obtained the plaintiff's informed consent to the procedure.

In opposition, the plaintiff has failed to articulate what risks or alternatives, if any, were not disclosed or demonstrate that a reasonable person would not have proceeded with the procedure if the risks and alternatives were disclosed. In addition, the plaintiff's allegations of an injury are speculative. She has failed to quantify the extent by which Dr. Dodd filed down her upper teeth, allege any pain from the procedure, or otherwise provide any evidence to support her bald allegation that she "will likely need an implant" based on the filing.

Accordingly, this cause of action is also dismissed.

The Court has considered the plaintiff's remaining contentions and finds that they are either unpersuasive or would not change the result. It is therefore,

ORDERED, that the motion of the Defendant Gregory Dodd, D.D.S. (Motion No. 2) [*7]seeking summary judgment in his favor is GRANTED in part and DENIED in part as follows: (1) the first cause of action (dental malpractice) is dismissed as against Dr. Dodd, excepting that part of the claim based on the alleged failure to provide a referral to the plaintiff in response to her complaints of pain on November 11; and (2) the third cause of action (lack of informed consent) is dismissed against Dr. Dodd; and it is further

ORDERED, that Dr. Dodd is granted permission to submit supplemental proof and renew his summary judgment motion by July 31, 2025, to address the sole issue of whether Dr. Dodd's recommendation/referral was communicated to the plaintiff. In the event Dr. Dodd supplements his papers, the plaintiff may submit responsive papers within two weeks thereafter.

This shall constitute the Decision and Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original decision into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.