Ost v Convissar

Civil Court of the City of New York, New York County

Decided on April 9, 2026

Index No. SC-002667-24/NY

Wendy Changyong Li, J.

I. Background

Claimant commenced the instant small claims action against Defendant for alleged "failure to provide goods" ordered for $515.00. The main dispute at hand concerned the alleged failure to return a dental "flipper," a temporary plastic partial denture.

Claimant was a former patient of Defendant, a dentist, who had been referred to by Claimant's periodontist to create the said flipper while awaiting permanent dentures. The statement of claim alleged in its entirety the following two claims: "failure to provide goods paid for"; and "failure to return good[s] paid for" (see statement of claim). On August 12, 2025, the matter proceeded to a bench trial, where Claimant and Defendant appeared pro se.

Claimant introduced one packet of paperwork, collectively marked as Claimant's Exhibit 1, which was admitted into evidence. Defendant introduced one packet of paperwork, collectively marked as Defendant's Exhibit A, which was admitted into evidence. The authenticity or the completeness of the content of the exhibits was not in dispute.

1) Testimony of Claimant

Claimant testified that he had been treated by his periodontist, who had referred him to [*2]Defendant. Defendant subsequently created a temporary flipper, which was installed in Claimant's mouth in December 2019 and removed several months thereafter in 2020. A permanent bridge was created for Claimant, which was not to Claimant's satisfaction pursuant to Claimant's testimony. When Claimant returned to Defendant's office for the installation of the permanent bridge, Claimant had requested to Defendant that the temporary flipper be returned so that it could be reinstalled in Claimant's mouth in the interim while Claimant explored other options. According to Claimant, Defendant subsequently refused to return the said temporary flipper.

Claimant argued that Defendant was obliged to return the temporary flipper in accordance with guidelines of the Centers for Disease Control and Prevention ("CDC"), and that Defendant had wrongly disposed of it despite Claimant's multiple attempts to retrieve it. In support of his claim, Claimant submitted an excerpt from CDC's website on "Best Practices for Handling Extracted Teeth" (see Claimant's Exhibit 1). Claimant testified that extracted teeth could be returned to dental patients upon request, and that as such, Defendant was in breach of CDC's guidelines. Claimant further submitted email communication from Claimant to Defendant on March 13, 2022, May 8, 2022 and October 25, 2022, in which Claimant requested that Defendant return the temporary flipper, stating he would explore "means to recover the money spent to create [the flipper]" "should [Defendant] and [his] firm Convissar/Goldstein not return the temporary bridge" (id.).

2) Testimony of Defendant

Defendant testified that Claimant had been referred to him by Claimant's periodontist, who had made a surgical incision in Claimant's gum tissue to insert several implants in his bones, which were then stitched in place. Defendant testified that he had been retained solely for the purpose of creating and installing the temporary flipper at issue, and that he had never extracted Claimant's teeth. According to Defendant, upon Claimant's return to Defendant's office for removal of the said flipper and subsequent installation of the permanent dentures, an implantologist made another incision in Claimant's gum tissue, which resulted in the said flipper being saturated with Claimant's bodily fluids such as blood and saliva.

Because the temporary flipper had come into contact with Claimant's blood and saliva, Defendant contended that the said temporary flipper was a regulated medical waste pursuant to regulations imposed by Occupational Safety Health Administration ("OSHA"), and that as such, Defendant had disposed of the said temporary flipper after it had served its purpose. Defendant testified that he was not required to return the temporary flipper to Claimant, and that in fact, Defendant would have been in violation of federal and state regulations had Defendant done so. According to Defendant, he would have also committed professional misconduct had he returned the temporary flipper to Claimant as it would have resulted in Defendant's failure to use scientifically accepted infection prevention techniques.

Defendant stated that he had been practicing dentistry for forty-five (45) years, was on the faculty of multiple dental schools throughout the world and was the author of seven (7) dentistry textbooks. Defendant testified that the temporary flipper was made from low quality [*3]plastic that was only meant to be worn for a short period of about three (3) to four (4) months as it was impossible to sterilize, arguing that the temporary flipper would melt upon attempts to sterilize it.

Defendant further testified that that the human mouth is dynamic, and that as a result, one's teeth would constantly shift due to eating different kinds of foods and aging. Thus, even if the used temporary flipper were to be returned to Claimant, Defendant contended that there would have been little possibility that it would fit in Claimant's mouth because it was created in 2019.

In support of his claims, Defendant submitted email communications sent by an individual named Lance Plunkett to Defendant, in which was an excerpt from Public Health Law § 1389-aa, 8 NYCRR § 29.2(a)(13) and OSHA's Bloodborne Pathogen Regulations (see Defendant's Exhibit A); and photographs of a flipper installed in a patient's mouth (id.).^FN1

II. Discussion

For the matter at hand, it is not at dispute (1) that Defendant had created and installed the temporary flipper at issue for Claimant; (2) that Claimant had requested for the return of the said temporary flipper from Defendant; and (3) that Defendant had subsequently disposed of the said temporary flipper in 2020. What remains for the Court is whether Defendant was obliged to return the used flipper to Claimant upon Claimant's request.

Here, it is unclear as to the specific relief Claimant sought from Defendant as Claimant alleged both a "failure to provide goods paid for" and a "failure to return good[s] paid for" (see statement of claim).

i) Replevin

As to the claim for return of the temporary flipper, the Court finds that the Small Claims part lacks subject matter jurisdiction to grant replevin because Small Claims Court only addresses matters in which the cause of action is for money only (see CCA 1801; see also Benitez v Calderon, 19 Misc 3d 134(A) [App Term, 2d Dept 2008]).

Even if the Court were to consider the replevin action in the Small Claims Part, which this Court is not, the Court is unpersuaded by Claimant's reliance on the CDC's guidelines on handling extracted teeth to argue that Defendant was required to return the used temporary flipper at issue. It was uncontested at trial that a flipper is defined as a temporary plastic partial denture; thus, the Court concludes that it cannot be categorized as extracted teeth. Here, [*4]Claimant failed to establish his prima facie burden. As such, Claimant is not entitled to the return of the temporary flipper from Defendant.

Further, the Court finds that Defendant was acting in accordance with federal and state regulations regarding regulated medical waste when he disposed of the used flipper in 2020. As contended by Defendant, OSHA's Bloodborne Pathogens Standard mandates that employers protect employees from occupational exposure to blood or other potentially infectious materials (see 29 CFR 1910.1030). It is noted that OSHA does not regulate the final disposal of contaminated waste (see 29 CFR 1910.1030[d][4][iii][C] ["[D]isposal of all regulated waste shall be in accordance with applicable regulations of the United States, States and Territories, and political subdivisions of States and Territories"]). Pursuant to 29 CFR 1910. 1030(b), an item or surface is considered "contaminated" when in "the presence or the reasonably anticipated presence of blood or other potentially infectious materials," which includes human body fluids such as "saliva in dental procedures." Such contaminated item is considered to be "regulated waste" if it contains "liquid or semi-liquid blood or other potentially infectious materials"; "release[s] blood or other potentially infectious materials in a liquid or semi-liquid state if compressed; or is "caked with dried blood or other potentially infectious materials and [is] capable of releasing these materials during handling" (see 29 CFR 1910. 1030[b]).

At the state level, Public Health Law's designates "discarded saturated material containing free flowing blood or blood components" as "regulated medical waste" (see NY CLS Pub Health § 1389-aa[1]), which must be stored, contained or disposed of in a manner articulated by Public Health Law § 1389-cc and § 1389-dd. In addition, a healthcare professional's failure to use appropriate scientifically accepted infection prevention techniques constitutes unprofessional conduct (see 8 NYCRR 29.2[a][13]).

For the matter at hand, the Court finds Defendant's testimony that the used flipper was impossible to sterilize to be credible and thus finds that the used flipper is a regulated medical waste because the said flipper became contaminated upon contact with Claimant's bodily fluids such as blood and saliva. Therefore, the Court finds that it was Defendant's obligation to take necessary precautions to dispose of the used flipper when it was removed from Claimant's mouth in 2020.

Claimant's complaint is dismissed on the replevin ground.

ii) Unjust Enrichment

With respect to the claim to recover the monetary value of the temporary flipper or for failure to provide goods paid for, it was established during trial that the temporary flipper in question was indeed provided by Defendant to Claimant in December 2019 for a period of several months until the arrival of permanent dentures. Further, the Court finds that a refund to Claimant for the cost of creating the temporary flipper would unjustly enrich Claimant, because Claimant has already received the full benefit of having the said flipper created and installed in his mouth for several months, to Defendant's detriment (see generally Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173 [2011]; Moors v Hall, 143 AD2d 336, 338 [2d Dept 1988]).

Claimant's complaint is also dismissed on the grounds of unjust enrichment.

iii) Dismissal of the Complaint

Claimant's complaint is dismissed in its entirety with prejudice.

III. Order

Accordingly, it is hereby:

ORDERED that Claimant's complaint is dismissed in its entirety with prejudice after trial.

This constitutes the DECISION and ORDER of the Court.

Dated: April 9, 2026

County of New York

Hon. Wendy Changyong Li

Judge of the Civil Court