Jimenez v Grannum

Supreme Court, Kings County

Decided on May 2, 2026

Index No. 508786/2020

Patria Frias-Colón, J.

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc #s 117-133; 152 by Defendants

NYSCEF Doc #s 139-151 by Plaintiff

Upon the foregoing cited papers and after hearing oral argument on January 20, 2026, pursuant to CPLR § 3212(b), the motion filed by Defendants seeking summary judgment and dismissing Plaintiff's complaint is GRANTED and DENIED in part as follows:

• The branch of the motion seeking summary judgment on the lack of informed consent and res ipsa loquitor is granted as to all Defendants.

• The branch of the motion seeking summary judgment on the dental malpractice cause of action is granted and denied in part as Plaintiff raised triable issues regarding the treatment rendered by Defendant Dr. Andrew Onyejiuwa, D.M.D. Additionally, Defendant Roger Grannum D.D.S., P.C., may be held vicariously liable for Dr. Andrew Onyejiuwa's alleged acts or omissions under a theory of apparent or ostensible agency.

This dental malpractice action arises from Plaintiff's allegation that Defendants negligently performed a tooth extraction, causing injuries to Plaintiff.^FN1 Following completion of discovery and the filing of the note of issue, Defendants moved for summary judgment.^FN2 After oral argument on January 20, 2026, the Court reserved decision.

Summary judgment is a drastic remedy that should be granted only where no genuine issue of material fact exists. Kolivas v. Kirchoff, 14 AD3d 493, 493 (2d Dept. 2005). The Court's role is issue-finding, not issue-determination; credibility assessment and weighing of evidence are improper. Laris v. City of New York, 236 AD3d 637, 638 (2d Dept. 2025). Evidence must be viewed in the light most favorable to the non-movand. Gambarian v. Spivakov, 241 AD3d 1529, 1529 (2d Dept. 2025).

To establish medical malpractice, a plaintiff must show (1) a deviation from accepted medical practice and (2) that the deviation was a proximate cause of the alleged injury. Danziger v. Mayer, 236 AD3d 755, 758 (2d Dept. 2025) (internal quotation marks omitted).

A claim for lack of informed consent requires proof that: (1) the provider failed to disclose alternatives and reasonably foreseeable risks that a reasonable practitioner would have disclosed; (2) a reasonably prudent patient would not have undergone the treatment if fully informed; and (3) the lack of informed consent proximately caused the injury. Cox v. Herzog, 192 AD3d 757, 758 (2d Dep't 2021).

The doctrine of res ipsa loquitor applies in medical malpractice cases only where the alleged injury is unexplained, the injury site is remote from the treatment site, and the plaintiff was anaesthetized. Antoniato v. Long Island Jewish Med. Ctr., 58 AD3d 652 (2d Dept. 2009).

A defendant seeking summary judgment must establish, prima facie, either (1) compliance with the standard of care or that (2) any departure was not a proximate cause of the alleges injury. Attia v. Klebanov, 192 AD3d 650, 651 (2d Dept. 2021). Conclusory expert opinions that merely recount treatment and assert compliance, are insufficient. Marsh v. City of New York, 191 AD3d 973, 973-974 (2d Dept. 2021). Failure to meet the initial burden requires denial of the motion regardless of the sufficiency of the opposition. Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 912-913 (2d Dept. 2022).

If the defendant meets this initial burden, the plaintiff must raise triable issues of fact. Alao v. Richmond Univ. Med. Ctr., 213 AD3d 722, 723 (2d Dept. 2023). Conflicting expert affidavits generally preclude summary judgment, as credibility determinations are for a jury. Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept. 2005).

Defendants established entitlement to summary judgment, dismissing Plaintiff's claims against Defendant Roger Grannum, D.D.S., as well as Plaintiff's causes of action for lack of informed consent and res ipsa loquitur against all Defendants. However, Plaintiff's dental malpractice claims against Defendant Drs. Andrew Onyejiuwa and Roger Grannum, D.D.S. survive. Defendants demonstrated that they did not depart from accepted standards of dental practice and the treatment rendered was not the proximate cause of Plaintiff's alleged injuries.^FN3 Schmidt v. Bangiyev, 210 AD3d 924 (2d Dept. 2022). They also demonstrated entitlement to [*2]judgment as a matter of law on the informed consent^FN4 and res ipsa loquitor claims.^FN5

However, in opposition, Plaintiff has raised triable issues of fact as to whether Defendant Dr. Andrew Onyejiuwa departed from good and accepted practice during the tooth extraction procedure and whether those alleged departures caused Plaintiff's injuries.^FN6Powell v. Singh, 199 AD3d 946 (2d Dept. 2021). Plaintiff has also raised triable issues as to whether Roger Grannum, D.D.S., P.C. may be vicariously liable for Dr. Onyejiuwa's alleged malpractice and negligence under a theory of apparent or ostensible agency.^FN7 See Sampson v. Contillo, 55 AD3d 588 (2d Dept. 2008) ("vicarious liability for the medical malpractice of an independent, private attending physician may be imposed under a theory of apparent or ostensible agency by estoppel").

Accordingly, Defendants' motion is granted only to the extent of dismissing Plaintiff's complaint as against Defendant Roger Grannum, D.D.S. and Plaintiff's claims for lack of informed consent and res ipsa loquitor against all Defendants. The remainder of the motion is denied.

Accordingly, with the dismissal of the action against Defendant Roger Grannum, D.D.S., the caption in this matter shall be amended to read:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

Eddy Jimenez,           Index # 508786/2020

PLAINTIFF,

against

Roger Grannum D.D.S., P.C., Dr. Andrew
Onyejiuwa, D.M.D., and Dr. Andrew Onyejiuwa, D.M.D., P.C.,

DEFENDANTS.

This constitutes the Decision and Order of the Court.

Date: May 2, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.