O'Shea v Capolongo

Supreme Court, New York County

Decided on May 12, 2026

Index No. 805380/2020

Kathy J. King, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118 were read on this motion to/for JUDGMENT — SUMMARY.

Upon the foregoing documents, and oral arguments having been heard, Defendant Neil Capolongo, D.D.S. ("Dr. Capolongo") moves for an Order:

1) granting summary judgment and dismissing Plaintiff's Complaint pursuant to CPLR 3212, in its entirety with prejudice;

2) alternatively, pursuant to CPLR 3211(a)(5), dismissing the Plaintiff's claims against [*2]Dr. Capolongo, for treatment spanning from 2008 to 2017, due to the expiration of the statute of limitations; and,

3) permitting Dr. Capolongo to enter judgment and directing the Clerk of the Court to enter judgment accordingly.

BACKGROUND

In 2007, Plaintiff, then ten (10) years old, first presented to Dr. Capolongo to address Class III malocclusion^FN1 (or an "underbite" indicated by the upper first molar occluding behind the lower first molar), maxillary dental crowding, lower jaw protrusion due to a crossbite involving teeth #7,8, 9,10 and blocked-out tooth #4. Dr. Capolongo made a recommendation for comprehensive orthodontic treatment based on Plaintiff's orthodontic diagnosis. On January 8, 2008, a consent form was signed by Plaintiff's mother, Leigh O'Shea, the same day that Defendant began treatment with fixed orthodontic bracing utilizing brackets and elastics. Defendant removed the braces on January 13, 2011, and Plaintiff was instructed to use a retainer and return for follow up and maintenance. The record indicates that Plaintiff did not return on a consistent basis and that Dr. Capolongo's examinations of Plaintiff on 1/31/2011, 3/31/2011, 1/17/2012, 4/24/2012 and 5/07/2012 were not significant for any movement. Complaints of pain were documented from both upper and lower retainers on 1/17/2012. Plaintiff's next and last examination with Defendant was on April 18, 2013.

Three years later, on March 21, 2016, Plaintiff, then 20 years old, returned to Dr. Capolongo, with complaints of headaches, and tightness and discomfort in his jaw. On this visit, Dr. Capolongo's notes indicate that Plaintiff was no longer wearing retainers and should be worked up in six months with surgical treatment in the future. According to Dr. Capolongo's deposition testimony, he believed the reported pain was from occlusion and discussed surgical treatment with Plaintiff and his mother once he stopped growing. Photographs were taken by Defendant who gave Plaintiff the names of two oral surgeons, however, Plaintiff decided to consult with Dr. Behrman, who was recommended by a family friend. Plaintiff's first visit with Dr. Berman was on August 9, 2017, where they discussed the goals and objectives of a combined orthodontic and orthognathic treatment including orthognathic surgery to move the mandible (lower jaw) and correct the underbite.

On August 30, 2017, Plaintiff returned to Dr. Berman to continue discussion regarding options and alternatives for management of known facial skeletal deformity. Thereafter, Plaintiff broke his six-month appointment with Dr. Capolongo, and instead returned one and a half years later on September 25, 2017, after he had seen Dr. Behrman. A class III malocclusion was recorded. Thereafter, at Dr. Behrman's request, the Plaintiff again returned to Dr. Capolongo for pre-operative orthodontic preparation. Invisalign attachments were first put in place on November 20, 2017 and throughout 2018 and 2019, in advance of the scheduled surgery with Dr. Behrman. On February 19, 2019, Dr. Behrman performed the surgical procedure that moves the mandible (lower jaw) as necessary to alter its positioning to obtain better alignment.

Upon discharge, Plaintiff followed up with Dr. Behrman and Dr. Capolongo. His first visit was to Dr. Behrman on February 25, 2019 who documented moderate bilateral soft swelling with mild yellow ecchymosis. Thereafter, Plaintiff returned to Dr. Capolongo on February 28, 2019 and March 4, 2019 to replace his elastics. In April 2019, Dr Behrman diagnosed Plaintiff [*3]with nonunion and on May 14, 2019 revision surgery was performed on by Dr. Behrman with the assistance of another surgeon. Plaintiff continued consulting with Dr. Behrman throughout May and June 2019, and returned to Dr. Capolongo in June 18, 2019 (five months following his last visit) complaining of limited opening. Dr. Capolongo noted that orthodontics would continue only after clearance from the surgeon. The next follow up visit was July 9, 2019, when Plaintiff again reported limitations opening his mouth associated with pain. On July 16, 2019, Plaintiff reported to Dr. Capolongo that he was seeking a second opinion for surgical revision, which was performed in November 2019. Dr. Capolongo reviewed the plan for post-surgical occlusion and also granted the request to review and approve the mold. On November 26, 2019, Dr. Capolongo spoke with Plaintiff who stated he was still in pain with a limited opening. Composite was removed, however, due to limited opening he was not able to participate in scanning or mold preparation. Dr. Capolongo successfully took molds for post-operative retainers on January 17, 2020, however, Plaintiff did not return to Dr. Capolongo's office for any further treatment.

On November 20, 2020, Plaintiff commenced the instant matter which proceeded through the completion of discovery and filing of the note of issue. Dr. Capolongo now moves for summary judgment dismissing Plaintiff's Complaint pursuant to CPLR 3212, or, alternatively, dismissing Plaintiff's claims against Dr. Capolongo for the treatment spanning from 2008 to 2017 as time-barred pursuant to CPLR 3211(a)(5). Plaintiff submits opposition to the motion.

CONTENTIONS OF THE PARTIES

Plaintiff's bill of particulars makes the following claims:

2008-2011

First phase of treatment involved Dr. Capolongo correcting Plaintiff's malocclusion with traditional braces. Plaintiff contends that Dr. Capolongo should have taken more cephalometric x-rays and performed occlusal analysis at the beginning, middle, and end of this treatment. As a result of this failure, Plaintiff claims that Dr. Capolongo misdiagnosed potential gross discrepancy from 2008 to 2020, and as a result, failed to assess the need for treatment based on growth changes and developing issues before beginning the second orthognathic stage.

2012-2017

Plaintiff claims that further treatment should have been done by Dr. Capolongo between the time Plaintiff's braces came off in 2011and the time of his first surgical consult with Dr. Behrman in 2017.

2018-2020

Second phase of treatment where Dr. Capolongo treated Plaintiff with pre-surgical Invisalign in preparation for the surgery to be performed by Dr. Behrman. Plaintiff claims that Dr. Capolongo failed to refer him to proper specialists for evaluation of headaches and failed to coordinate with Dr. Behrman regarding surgery. Plaintiff also alleges a lack of informed consent regarding the risks and benefits of such treatment.

As a result of these claims, Plaintiff asserts that Dr. Capolongo proximately caused his injuries including neuromuscular problems (arising from trigeminal nerve injury), malocclusion, loss of root structure and bone, and resulting symptoms such as inability to chew, severe pain, and restricted mouth opening.

Defendant contends that no triable issues of fact exist since the care and treatment rendered by Dr. Capolongo was at all times within the standard of care and did not proximately cause Plaintiff's injuries. Defendant also contends that to the extent that the Court finds issues of [*4]fact exist, the claims against Dr. Capolongo should be limited to the care and treatment from 2016 to 2020, as any treatment prior to 2016 is time barred.

DISMISSAL PURSUANT TO CPLR 3212

A defendant physician moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of dental practice, and by establishing that the plaintiff was not injured by such treatment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Frye v Montefiore Med. Ctr., 70 AD3d 15 [1st Dept 2009]; McGuigan v Centereach Mgt. Group, Inc., 94 AD3d 955 [2d Dept 2012]; Sharp v Weber, 77 AD3d 812 [2d Dept 2010]; see generally Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). To satisfy this burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]; Joyner-Pack v Sykes, 54 AD3d 727 [2d Dept 2008]; Koi Hou Chan v Yeung, 66 AD3d 642 [2d Dept 2009]; Jones v Ricciardelli, 40 AD3d 935 [2d Dept 2007]).

In support of his motion, Dr. Capolongo submits the expert affirmation of Dr. Adam Goodman ("Dr. Goodman"), an Orthodontist, with experience in all areas of orthodontics including traditional braces, Invisalign and pre-surgical and post-surgical orthodontics, who opines to a reasonable degree of medical certainty, that all claims against Dr. Capolongo lack merit and asserts that Dr. Capolongo consistently met the standard of care throughout all phases of Plaintiff's treatment.

Specifically, Dr. Goodman opines that Plaintiff had a slight class III malocclusion when he began treating with Dr. Capolongo at age 12, and that Plaintiff's course of treatment with traditional braces was appropriate and within the standard of orthodontic care from 2008 to 2011. According to Dr. Goodman, Defendant appropriately focused on aligning the dentition in both arches, and on moving the teeth in a manner that safely compensated for skeletal discrepancy due to Plaintiff's young age. He opines that it would not have been appropriate to perform surgery or correct the bony structure of the jaw, because Plaintiff was still growing and any repair would not have been final. Contrary to any contentions asserted by Plaintiff, he concludes that traditional braces was the appropriate approach to Plaintiff's malocclusion in 2008. During this period of treatment, Dr. Goodman opines that Dr. Capolongo appropriately took photographs of Plaintiff at the beginning of his treatment in 2009 and once when the braces came off in 2011, consistent with the standard of care. According to Dr. Goodman, x-rays are only taken during the middle of treatment only if an issue arises, which was not the case here.

Additionally, Dr. Goodman opines that Dr. Capolongo's treatment from 2012 to 2015 consisted primarily of monitoring and, as a result, surgical correction was not indicated, since Plaintiff was still growing. Dr. Goodman opines that Plaintiff's complaints of pain during this time are attributed to sporadic retainer use. While Plaintiff contends that Dr. Capolongo should have put Plaintiff back in braces in 2013 or 2016, Dr. Goodman opines that it was not a departure from the standard of care to take a "wait and see" approach for Plaintiff get through puberty. Notably, Dr. Goodman cites Dr. Capolongo's notes, consent form, and deposition testimony, to show that he considered growth changes prior to 2016 in making his recommendations.

In 2016, given Plaintiff's overbite and complaints of discomfort, Dr. Goodman states that [*5]Dr. Capolongo's referral to a surgeon at this time was appropriate, since surgical correction was a reasonable approach as Plaintiff was reaching the end of his growth.

Dr. Goodman opines that after Plaintiff discussed surgery with Dr. Behrman in 2017, Dr. Capolongo's role in treating Plaintiff was confined to pre-surgical orthodontics. Dr. Goodman notes that Dr. Capolongo had no role in determining whether surgery was indicated or the nature of the surgery needed. Dr. Goodman further opines that Dr. Capolongo appropriately communicated with Dr. Behrman, and that Dr. Capolongo's pre-surgical treatment with Invisalign from 2018 to 2020 was at all times within good and accepted orthodontic practice since Plaintiff's malocclusion was corrected successfully enough to allow for surgery to be done. As to causation, Dr. Goodman opines that Dr. Capolongo's treatment did not proximately cause Plaintiff's claimed neuromuscular injuries, including inability to chew, severe pain, and inability to open his mouth.

Based on Dr. Goodman's expert affirmation, the Court finds that Dr. Capolongo has established prima facie entitlement to summary judgment as a matter of law as to Plaintiff's claim of dental malpractice. Contrary to Plaintiff's contention, the Court finds that Dr. Goodman's opinion is sufficiently reliable to rebut the particular allegations of malpractice set forth in Plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874 [2d Dept 2008]; Terranova v Finklea, 45 AD3d 572 [2d Dept 2007]). While Dr. Goodman is not a board certified orthodontist, the Court notes that his expert opinion in support of Defendant's motion is supported by facts in the record, including the deposition testimony of the parties, and addresses the essential allegations in the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]; Joyner-Pack v Sykes, 54 AD3d 727, 729 [2d Dept 2008]; Koi Hou Chan v Yeung, 66 AD3d 642 [2d Dept 2009]).

Once the proponent of a summary judgment motion makes a showing of entitlement to dismissal by tendering evidence sufficient to demonstrate the absence of material issues of fact, the burden shifts to the plaintiff "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (see Alvarez, 508 NYS2d at 925; see also Menzel v Plotnick, 202 AD2d 558 [2d Dept 1994]; Salamone v Rehman, 178 AD2d 638 [2d Dept 1991]).

As a threshold matter, the Court finds that Dr. Laurence Jerrold, Plaintiff's expert in opposition, is qualified to proffer an opinion. He is an Orthodontist who has over thirty years of clinical and academic experience, and like Dr. Goodman renders his opinion based on his experience and review of the record. Additionally, Dr. Jerrold's opinion is legally sufficient as a matter of law since it directly contravenes the material issues of fact opined on by Dr. Goodman (see Ruiz v Reiss, 180 AD3d 623 [1st Dept 2020]; Rotante v New York Presbyt. Hosp.-New York Weill Cornell Med. Ctr., 175 AD3d 1142 [1st Dept 2019]; Biondi v Behrman, 149 AD3d 562 [1st Dept 2017].

As to Plaintiff's first phase of treatment, Dr. Jerrold opines to a reasonable degree of medical certainty that Dr. Capolongo departed from the standard of orthodontic care, proximately causing Plaintiff's claimed injuries. In contrast to Dr. Goodman, Dr. Jerrold opines that Dr. Capolongo failed to properly use class 111 mechanics to reduce the malocclusion. He also opines that the cephalometric x-rays were necessitated to monitor the rate and amount of skeletal Class 111 growth. According to Dr. Jerrold, while Dr. Capolongo initiated class 111 mechanics in December 2008, he discontinued use after only a few months and was rebonding [*6]brackets. As a result, Dr. Jerrold opines that Dr. Capolongo's continued care with removeable appliances was a deviation from the standard of care and did not correct the class 111 malocclusion. He emphasizes that the appliances were useless as they were not designed, nor could they prevent the compounding of the class 111 malocclusion.

Dr. Jerrold further opines regarding the second phase of Plaintiff's treatment took place in March 2016. He states that it was a departure from the standard of care to recommend surgery eighteen months after Plaintiff had his last visit with Dr. Capolongo without proper clinical and diagnostic testing. Unlike Dr. Goodman who opines that Plaintiff's headaches were due to sporadic retainer use, Dr. Jerrold opines that Dr. Capolongo's failure to record patient notes and/or perform a clinical examination to determine whether these complaints were related to his bite, and/or the tightness and discomfort in his jaw, was a deviation from the standard of care.Lastly, Dr. Jerrold opines that Dr. Capolongo's orthodontic and surgical treatment recommendations to prevent Plaintiff's complaint of muscle discomfort, together with temporomandibular joint (TMD) and future periodontic problems had no medical/dental justification, and was a departure from the standard of care, proximately causing Plaintiff's injuries.

The Court finds that Plaintiff's expert affirmation raises triable issues of fact, rebutting Dr. Capolongo's prima facie entitlement to summary judgment, thus, the branch of the motion seeking dismissal of Plaintiff's complaint as to medical malpractice is denied. It is well settled that "Summary judgment is not appropriate ... [when] the parties [submit] conflicting medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues which can only be resolved by a jury" (Cummings v Brooklyn Hosp. Ctr., 147 AD3d 902, 904 [2d Dept 2017], quoting DiGeronimo v Fuchs, 101 AD3d 933 [2d Dept 2012] [internal quotation marks omitted]; see Elmes v Yelon, 140 AD3d 1009 [2d Dept 2016]; Leto v Feld, 131 AD3d 590 [2d Dept 2015]).

DISMISSAL OF PLAINTIFF'S CLAIMS FOR DATES OF TREATMENT BETWEEN 2008 AND 2017 PURSUANT TO CPLR 214-a

While the Court has determined that there are triable issues of fact warranting denial of summary judgment, Defendant contends that the claims to be considered by the Court must be limited to Dr. Capolongo's care and treatment from 2018 to 2020, as the treatment prior to 2017 is time barred pursuant to CPLR 214-a.

The Court agrees.

CPLR 214-a provides that a claim arising from dental malpractice has a 2 ½ year statute of limitations accruing from the time of the "act, omission or failure complained of." This statutory period is tolled upon a showing that a malpractice action was brought within 2 ½ years of the date of "last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the ... act, omission or failure" constituting the malpractice.

For the continuous treatment doctrine to apply, the course of treatment must "run continuously and [be] related to the same original condition or complaint" (Cassara v Larchmont-Mamaroneck Eye Care Group, 194 AD2d 708 [2d Dept 1993]) (citations and internal quotation marks omitted). It does not apply to situations in which a patient returns simply to have his or her condition checked, or to routine examinations of a patient which [are] conduct[ed] repeatedly over the years. Thus, even where there are multiple visits, the doctrine does not apply when these visits consist "of routine checkups and a series of isolated and discrete procedures ..." (Pietromonaco v Schwartzman, 259 AD2d 474 [2d Dept 1999]).

The caselaw is well settled that, upon a defendant's prima facie showing that the statute of limitations has expired, the burden shifts to the plaintiff to demonstrate that the examinations constituted "continuous treatment," invoking the tolling exception set forth by CPLR 214-a (Braun v Lewis, 99 AD3d 574 [1st Dept 2012]).

In the case at bar, Defendant made a prima facie showing that the care and treatment rendered by Dr. Capolongo's treatment was not continuous, but instead consisted of two separate phases, Phase 1 in 2008 and Phase 2 in 2018. Based on the record, Defendant established that the first phase of treatment consisted of fixed bracing for class III malocclusion which was completed in January 2011 upon the removal of Plaintiff's braces, and that the second phase of orthodontic treatment was from 2018 to 2020 when Dr. Capolongo treated Plaintiff with pre-surgical Invisalign. These two phases of treatment were separated by multiple consultations from 2011 to 2017.

While Plaintiff depends on complaints of headaches and discomfort on his March 21, 2016^FN2 visit to Dr. Capolongo to demonstrate that further treatment of the malocclusion was explicitly anticipated as part of continuous treatment, Plaintiff, by his own testimony, indicates Dr. Capolongo advised that based on his complaints he needed a surgical consult after he stopped growing. In this regard, the record demonstrates that Dr. Capolongo's role as the referring orthodontist was limited to making the referral, and he had no role in determining whether surgery was indicated or what type of surgery was necessary.

Accordingly, the Court finds that Plaintiff has failed to rebut Defendant's showing that Plaintiff's 2016 visit with Dr. Capolongo established a new and distinct treatment path aimed at addressing a new, growth-related progression of the Plaintiff's underbite. In this regard, the record further shows that Plaintiff's consultations with Dr. Capolongo in 2017 were limited to Invisalign surgical correction and/or post-surgical orthodontics which were to take place once the decision to move forward with surgery was made. The Court notes that these consultations were consistent with the second phase of Plaintiff's treatment, since the record shows that Plaintiff "grew out of" corrected occlusion and was now considering surgical options.^FN3

As a result, the statutory tolling exception of CPLR 214-a, does not apply for Plaintiff's treatment from 2008 to 2017, since Plaintiff failed to demonstrate that those visits, and the 2016 and 2017 consultations, constituted a continuation of the original course of treatment; thus, all claims arising prior to 2017 are time-barred and must be dismissed as a matter of law.

DISMISSAL BASED ON LACK OF INFORMED CONSENT

It is well-settled that a defendant moving for summary judgment on a lack of informed consent claim must demonstrate that a plaintiff was informed of any foreseeable risks, benefits, or alternatives of the treatment rendered (see Henry v Bezalel Rehabilitation & Nursing Center, 2020 NY Slip Op 30369(U) [Sup Ct, NY County 2020]; Koi Hou Chan v Yeung, 66 AD3d 642.

While Dr. Goodman opines that Dr. Capolongo had no role in obtaining informed consent as to surgery performed by Dr. Berman, he opines that Dr. Capolongo appropriately explained the risks and benefits of Invisalign and Invisalign planning in general. Dr. Goodman [*7]also notes that an informed consent form was signed by Plaintiff's mother at the commencement of treatment in 2008. Evidence of an "informed consent" discussion in the form of deposition testimony or medical records strengthens the defendants' showing in this regard (Orphan v Pilnik, 66 AD3d 543 [1st Dept 2009], affd 15 NY3d 907 [2010]).

Taken together, Defendant has made out a prima facie showing as to informed consent, which is rebutted by Plaintiff's expert, in opposition, who opines that there was no written consent for the second phase of treatment, thus, raising a triable issue of fact.

Accordingly, it is hereby

ORDERED that Defendant's motion for summary judgment is granted to the extent of dismissing all claims for dates of treatment prior to 2017, and in all other respects Defendant's motion is denied; and it is further

ORDERED that Defendant is directed to serve a copy of this order, with notice of entry, upon Plaintiff within twenty (20) days of entry of this Order; and it is further

ORDERED that the parties shall appear for a virtual settlement/pre-trial conference on December 16, 2026, at 11:00am, after consultation with the Court's Alternative Dispute Resolution (ADR) department. The ADR Order and specific date, time, and appearance link for the virtual conference shall be set forth in subsequent correspondence by the Court.

This constitutes the decision and order of the Court.

DATE 5/12/2026

KATHY J. KING, J.S.C.