NY State Appellate Division Reinstates Defense Verdict in Dental Malpractice Case

11/30/16

M.C. v. S.Y., DDS and M.Y., DDS, New York State Appellate Division, First Department

A unanimous defense verdict in favor of two defendant general dentists in New York State was obtained by Maryanne Kolenovsky at trial after pre-trial handling and work-up by James Modzelewski in this dental malpractice action.  This case involved the defendants’ failure to recognizes signs of and diagnose an ameloblastoma, a rare benign odontogenic tumor. 

The plaintiff, a young woman in her 20’s, lost a good portion of one side of her mandible and 7 teeth resulting in the need for reconstructive surgery and implants. Defendants had treated plaintiff at their dental practice from 2009 until 2011, by which time she had a visible growth in her mouth.  Despite the fact that this tumor was, in all likelihood, present on plaintiff’s first visit to defendant’s office, a defense verdict was obtained.  Plaintiff’s attorney is an experienced litigator who concentrates in plaintiff dental malpractice cases as he is also a licensed dentist. In face of a $2 million demand, $125,000 was offered prior to the commencement of trial.  This was rejected by plaintiff’s counsel and no further settlement offers were made.

Following the unanimous defense verdict, plaintiff filed a post-trial motion to set aside the verdict, which the defense vigorously opposed with motion papers prepared by Rachel Greenberg. In addition, there were extensive post-trial submissions, including supplemental expert submissions and written submission by trial counsel regarding her defense strategy and expert preparation which the Judge ordered (despite it being unprecedented for a judge to go beyond the purview of the court by engaging in fact-finding which was the jury’s function).  The defense verdict was overturned and a new trial ordered.  An appeal thereafter took place which resulted in the New York State Appellate Division, First Department reinstating the verdict in favor of both defendants. 

Maryanne Kolenovsky and James Modzelewski are partners in Rawle & Henderson LLP’s Long Island office. Rachel Greenberg is Of Counsel in the Long Island office.