Opinion
Argued December 14, 2000.
January 16, 2001.
In an action to recover damages for dental malpractice, the defendant Jeffrey Klein appeals from a judgment of the Supreme Court, Orange County (Sweeny, J.), entered November 23, 1999, which, upon a jury verdict, is in favor of the plaintiff and against him in the principal sum of $33,000.
Meiselman, Denlea, Packman Eberz, P.C., White Plains, N Y (Robert J. Levine of counsel), for appellant.
James J. Herkenham, Slate Hill, N.Y., for respondent.
Before: LAWRENCE J. BRACKEN, ACTING P.J., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, LEO F. McGINITY, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, and the complaint is dismissed.
The plaintiff alleged that the defendant Jeffrey Klein committed dental malpractice in failing to take timely remedial measures after he lodged a root canal file in her mouth during the course of a dental procedure. At trial, the plaintiff's expert testified that the plaintiff's tooth was removed because of an infection. However, he failed to testify that the infection, which existed before the plaintiff visited Dr. Klein, became untreatable because of Dr. Klein's alleged malpractice. Accordingly, there was no proof that any departure from accepted practice was a proximate cause of injury or damage (see, Lyons v. McCauley, 252 A.D.2d 516). Therefore, the judgment in favor of the plaintiff must be reversed and the complaint dismissed (see, Falotico v. Frankel, 232 A.D.2d 607).