Rosenzweig v. Singer

Summary

The New York Appellate Division, Second Department, reversed judgments dismissing a dental malpractice cause of action against Alan B. Singer and the Hirsch defendants. The court held that the Hirsch defendants had withdrawn the relevant summary judgment request and that Singer failed to establish prima facie entitlement to summary judgment because his expert evidence did not rebut the specific malpractice allegations. The court reinstated the relevant claims and dismissed the appeal from the underlying order as no longer directly appealable after entry of judgment.

Holdings

1. The appeal from the September 23, 2020 order was dismissed because the right of direct appeal from the order terminated upon entry of the judgments; the issues raised by that order were reviewable on the appeals from the judgments.
2. The Hirsch defendants were not entitled to summary judgment on the dental-malpractice claims based on acts occurring after October 14, 2007 because they expressly withdrew that branch of their motion before Supreme Court decided it.
3. Singer failed to establish prima facie entitlement to summary judgment because his submissions did not eliminate all triable issues of fact or rebut all specific allegations of dental malpractice in the bill of particulars.

Questions Presented

1. Whether the appeal from the September 23, 2020 order should be dismissed after judgments were entered.
2. Whether the Hirsch defendants could obtain summary judgment on claims based on acts occurring after October 14, 2007 when they had withdrawn that branch of their motion before the motion was decided.
3. Whether Singer established prima facie entitlement to summary judgment by rebutting all specific dental-malpractice allegations and demonstrating that he did not depart from good and accepted practice or cause the plaintiff's injuries.

Disposition

reversed