Trindade v. Rock

Trindade v Rock 2024 NY Slip Op 32833(U) August 12, 2024 Supreme Court, New York County Docket Number: Index No. 805340/2019 Judge: John J. Kelley Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 08/12/2024 12:48 PM INDEX NO. 805340/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 08/12/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JOHN J. KELLEY PART 56M Justice ---------------------------------------------------------------------------------X INDEX NO. 805340/2019 GRACE TRINDADE, Plaintiff, -v- AMENDED DECISION + ORDER DR. ALEXANDER ROCK, DR. ROBERT WINEGARDEN, AFTER INQUEST ROBERT F. WINEGARDEN, D.D.S., P.C., DR. TATYANA BERMAN, and JERRY H. LYNN, D.D.S., Defendants. ---------------------------------------------------------------------------------X

The court’s prior decision and order after inquest, dated March 25, 2024, is recalled and vacated, upon the court’s own motion, to reflect the discontinuance of the action as against the defendant Dr. Tatyana Berman, and the following amended decision and order is substituted therefor: I. INTRODUCTION This is an action to recover damages for dental malpractice. The plaintiff alleged that the defendants willfully and wantonly permitted unlicensed dentists and unlicensed assistants and technicians to diagnose and treat her. The plaintiff contended, inter alia, that the defendants negligently performed diagnostic procedures to determine the extent and nature of her dental problems, negligently prepared teeth for crowns and placed implants, failed to inform her of the risk and consequences of the prescribed treatment, and thereafter negligently abandoned her. In an order dated September 9, 2021, the court, upon concluding that the plaintiff set forth sufficient proof of the facts underlying her cause of action to recover for negligence and lack of informed consent, granted her motion for leave to enter a default judgment against the defendants Dr. Alexander Rock, Dr. Robert Winegarden, Robert F.

Winegarden, D.D.S, P.C., and Jerry H. Lynn, D.D.S. (collectively the defaulting defendants), on the issue of liability, and set the matter down for an inquest on the issue of damages, to be conducted simultaneously with the trial against the answering defendant, Dr. Tatyana Berman.

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On January 6, 2022, the plaintiff filed a non-jury note of issue. On June 14, 2023, the court entered a trial-scheduling order, which fixed July 31, 2023 as the date for both the nonjury trial against Berman and the inquest against the defaulting defendants. None of the defaulting defendants appeared on that date. The court proceeded to hold an inquest on the issue of damages on that date. The plaintiff, however, discontinued the action against Berman. The court awards compensatory damages against the defaulting defendants, jointly and severally, the sum of $139,800, and awards punitive damages against the defaulting defendants, jointly and severally, in the sum of $100,000.

I. FINDINGS OF FACT The facts underlying the issue of liability for dental malpractice are set forth in this court’s September 9, 2021 order.

At the July 31, 2023 inquest on the issue of damages, the plaintiff testified on her own behalf and adduced the expert testimony of Herbert Rubin, D.D.S., a dentist who had practiced dentistry for more than 50 years in New York State. The court finds that the credible testimony of both the plaintiff and her expert dentist established the following facts: The plaintiff went to see the defaulting defendants for treatment of her upper teeth, including the placement of a bridge. The defaulting defendants’ laboratory technician, who was not a licensed dentist, did much of the dental work that the plaintiff required. Although she originally was told that it would cost her $7,000 for the necessary dental work, she instead paid $14,800, as the price changed upon each visit. Despite payment in full, the defaulting defendants did not complete the necessary dental work, inasmuch as, when the plaintiff returned to the office for scheduled appointments, she was sent home without treatment after waiting for hours. Although the defaulting defendants initially installed a temporary bridge, that bridge required repair to the extent that those defendants tried to “hammer” the plaintiff’s mouth again to get it out. The plaintiff cannot chew properly, the bridge is loose and moves when she

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The plaintiff will need six implants and a full reconstruction, and will suffer from pain and discomfort for approximately six months, while it is uncertain as to whether the implants will take hold in the first instance. The fair and reasonable cost of fixing the plaintiff’s upper teeth is between $45,000 and $55,000.

II. CONCLUSIONS OF LAW A defaulting defendant admits all traversable allegations in the complaint, including the basic issue of liability (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 [1985]; Cole-Hatchard v Eggers, 132 AD3d 718, 720 [2d Dept 2015]; Gonzalez v Wu, 131 AD3d 1205, 1206 [2d Dept 2015]). The defaulting defendants are, however, “entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages” (Minicozzi v Gerbino, 301 AD2d 580, 581 [2d Dept 2003] [internal quotation marks omitted]; see Rudra v Friedman, 123 AD3d 1104, 1105 [2d Dept 2014]; Toure v Harrison, 6 AD3d 270, 272 [1st Dept 2004]). All of the defaulting defendants elected not to present such testimony or cross-examine witnesses at the inquest here, despite being provided with notice of the inquest.

This court already has determined that the plaintiff has a cause of action to recover for dental malpractice, inasmuch as a deviation or departure from accepted practice, and evidence that such departure was a proximate case of the plaintiff’s injuries, constitute dental malpractice (see Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]; Frye v Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009]; Elias v Bash, 54 AD3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 AD3d 521, 522 [1st Dept 2004]).

“The ‘reasonableness’ of compensation must be measured against relevant precedent of comparable cases” (Kayes v Liberati, 104 AD3d 739, 741 [2d Dept 2013]; see Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 275 [1st Dept 2007]; Reed v City of New York, 304 AD2d 1, 7 [1st Dept 2003]; Halsey v New York City Tr. Auth., 114 AD3d 726, 727 [2d Dept 2014]).

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“Although prior damage awards in cases involving similar injuries are not binding upon the courts, they guide and enlighten them with respect to determining whether a verdict in a given case constitutes reasonable compensation” (Miller v Weisel, 15 AD3d 458, 459 [2d Dept 2005]; see Garcia v CPS 1 Realty, L.P., 164 AD3d at 659 [2d Dept 2018]; Vainer v DiSalvo, 107 AD3d 697, 698-699 [2d Dept 2013]; Reed v City of New York, 304 AD2d at 7). What constitutes “reasonable compensation” must be assessed with due regard to the “circumstances presented” (Luna v New York City Tr. Auth., 116 AD3d 438, 438 [1st Dept 2014]).

The court concludes that the plaintiff is entitled to an award of $70,000 for past pain and suffering (see Altman-Fider v Gershon, 2002 NY Slip Op 30122[U], *5, 2002 NY Misc LEXIS 2029 [Sup Ct, N.Y. County, Feb. 19, 2002] [action from more than 20 years ago, holding that an award of $40,000 for past pain and suffering was consistent with several other tooth injury cases]; see also Classen v Ashkinazy, 258 AD2d 863, 865 [3d Dept 1999][affirming past pain and suffering award of $40,000 to plaintiff with failed lower dental implant]; Teller v Anzano, 263 AD2d 647, 650 [3d Dept 1999] [modifying judgment to allow $35,000 past pain and suffering award in personal injury action involving damage to two front teeth]; Kushner v Mollin, 181 AD2d 866, 867 [2d Dept 1992] [affirming award of $40,000 for past pain and suffering where plaintiff lost six upper teeth]). The court notes that these representative cases were decided between and 30 years ago, so that a reasonable award in 2024 would take inflation and other economic factors into account.

The court also concludes that the plaintiff is entitled to an award of $14,800 for her past expenses, and $55,000 for her future expenses, in accordance with the testimony adduced by the plaintiff and her expert, Dr. Rubin.

New York does not recognize an independent cause of action for punitive damages; however, a demand or request for punitive damages is viable when attached to a substantive cause of action (see Randi A. J. v Long Is. Surgi-Center, 46 AD3d 74, 80 [2d Dept 2007]). While a demand for punitive damages is often raised in terms of conduct that is 805340/2019 TRINDADE, GRACE vs. ROCK, DR., ALEXANDER Page 4 of 6

Med. Ctr., 185 AD2d 753, 754 [1st Dept 1992]).

The court concludes that the defaulting defendants’ behavior and the practices that they engaged in, including the abandonment of the plaintiff as their patient, and, in Lynn’s case, practicing dentistry after surrendering his license, are sufficient to warrant an award of punitive damages. Such an award is appropriate to deter future reprehensible conduct by the defaulting defendants and others similarly situated (see Garber v Lynn, 79 AD3d 401, 403 [1st Dept 2010]; Randi A. J. v Long Is. Surgi-Center, 46 AD3d at 81). As such, the court concludes that the plaintiff is entitled to an award of punitive damages in the amount of $100,000, payable by the defaulting defendants, jointly and severally.

III. CONCLUSION In light of the foregoing, it is, ORDERED that the Clerk of the court shall enter judgment in favor of the plaintiff, Grace Trindade, 1506 150th Street, Whitestone, New York, 11357 and against: (a) the defendants Dr. Alexander Rock, 5 Commack Road, Commack, New York 11725, Dr. Robert Winegarden, 401 East 34th Street, New York, New York 10016, Robert F. Winegarden, D.D.S., P.C, 57 West 57th Street, Suite 610, New York, New York 10019, and Jerry H. Lynn, D.D.S., 41 West 58th Street, New York, New York, 10019, jointly and severally, in the sum of $139,800 as and for compensatory damages, with statutory interest at 9% per annum from September 8, 2021, as against Dr. Alexander Rock, Dr. Robert Winegarden, Robert F. Winegarden, D.D.S., P.C, and Jerry H. Lynn, D.D.S., and, (b) against the defendants Dr. Alexander Rock, Dr. Robert Winegarden, Robert F. Winegarden, D.D.S., P.C, and Jerry H. Lynn, D.D.S., jointly and severally, in the additional sum of $100,000 as and for punitive damages, with statutory interest at 9% per annum from September 8, 2021.

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This constitutes the Amended Decision and Order After Inquest of the court.

8/12/2024 $SIG$ DATE JOHN J. KELLEY, J.S.C.

CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION

□ GRANTED DENIED GRANTED IN PART X OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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