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FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012
NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY NEW YORK
EDWARD SCARANO, SUSAN SCARANO, lndex No: 80513212012
Plaintiffs,
-against- AFFIRMATION
DEAN VAFIADIS, D.D.S., lndividually and dlbla
NEW YORK SMILE INSTITUTE, GARY RUTH,
D.D.S., MAXILLOFACIAL SURGERY
SERVICES, L.L.C., GEORGE ANASTRASSOV,
M.D., D.D.S.,
Defendants
GEORGE N. KALAMARAS, ESQ., an attorney duly admitted to practice law
before the courts of the State of New York, hereby affirms, upon information and belief,
the following to be true pursuant to CPLR S 2106 under the penalties of perjury:
1. I am an associate at the law firm of RAWLE & HENDERSON LLP,
attorneys of record for defendants, GEORGE ANASTASSOV, M.D., D.D.S. s/h/a
GEORGE ANASTRASSOV (hereinafter DR. ANASTASSOV) and
MAXILLOFACIAL SURGERY SERVICES, L.L.C.(hereinafter MSS) , in the above
captioned matter, as such I am familiar with the facts and circumstances
contained herein
2. This affirmation is submitted in support of the defendants' motion to reargue
the denial sub silencio of DR. ANASTASSOV and MSS's motion for a.) dismissal
of plaintiff's claim sounding in patient abandonment and/or constructive
abandonment; b.) dismissal of plaintiff's claim sounding in breach of contract;
and
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For such other and further relief that this courl deems just and proper
PROCEDURAL HISTORY
3. Annexed hereto is the Decision and Order of Justice Joan B. Lobis dated May
23, 2017 and uploaded to NYSCEF on May 31, 2017 which addressed several
pending motions by various defendants. The Decision states defendants have
moved by separate motions for dismissal of various causes of action and other
relief and are jointly decided. This courl ultimately granted the motions by GARY
RUTH, D.D.S and DR. ANASTASSOV and MSS dismissing all claims for
punitive damages with prejudice and striking all mention the terms of wanton,
reckless and recklessly from plaintiff's pleadings. This court dismissed
defendant's, BABAK GHALILI, D.D.S., complaint with prejudice in its entirety and
amended the caption to reflect the dismissal of defendants, GARY GOLDSTEIN,
D.D.S, BABAK GHALILI, D.D.S. and MARK KOVALEVSKIY, M,D. The court was
silent regarding DR. ANASTASSOV and MSS's motions to a.) dismiss plaintiff's
claims of patient abandonment and/or constructive abandonment and b.) dismiss
plaintiff's claim sounding in breach of contract.(Exhibit A)
4. Annexed are the underlying papers, as follows:
Exhibit B: Copy of the initial moving papers of your affirmant's Order to Show
Cause (proposed) and supporting Affirmation.
Exhibit C: Totality of the moving exhibits for the underlying motion.
Exhibit D: Affirmation in Opposition and Affidavit in Opposition.
Exhibit E: Reply Affirmation
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5. This action in dental malpractice was commenced by plaintiff serving his
Summons and Complaint on or about June 7, 2012 (Exhibit C, Exhibit A
underlying papers). lssue was joined on behalf of defendants, DR.
ANASTASSOV and MSS, on or about August 1, 2012. (Exhibit C; Exhibit B
underlying papers). For the sake of brevity, the case's other relevant procedural
history is set forth in the underlying moving papers. (Exhibit B)
ARGUMENT
6. lt is respectfully submitted that this court overlooked both the facts and the
law when it denied, sub silencio, DR. ANASTASSOV and MSS's motions to
dismiss a.) plaintiff's claims in patient abandonment and/or constructive
abandonment and b.) plaintiff's claims in breach of contract. As can be seen in
the underlying Order to Show Cause, at part "c", the movants sought the
dismissal of plaintiff's claims sounding in patient abandonment and/or
constructive abandonment against defendants and at part "d", the movants
sought the dismissal of plaintiff's claims sounding in breach of contract against
defendants as there was no valid contact to breach.
7. ln the coutl's Decision and Order dated May 23, 2017, the court references
that DR. ANASTASSOV and MSS "seek dismissal with prejudice pursuant to
CPLR $$ 3211 (a)(7) and 3212 of all claims for punitive damages, patient
abandonment, and breach of contract..." and "in addition, Dr. Anastassov seeks
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dismissal of all other non-malpractice causes of action in the complaint." (Exhibit
A)
8. ln its decision, the court granted the motions dismissing all claims of punitive
damages with prejudice against DR. ANASTASSOV and MSS and struck all
mention of wanton, reckless and recklessly from plaintiff's pleading. The court
remained silent and did proffer a decision as to DR. ANASTASSOV and MSS's
pads of their motion seeking dismissal of plaintiff's claims against defendants
sounding patient abandonment and breach of contract.
9. As set forth in that supporting affirmation, plaintiff from the time of his initial
consultation with DR. ANASTASSOV on September 14,2011 through February
8,2012 was under the continuous care and treatment of DR. ANASTASSOV. lt
was plaintiff who missed numerous follow up appointments and abruptly
terminated his patienVoral and maxillofacial surgeon relationship with DR.
ANASTASSOV on February B, 2012 and therefore his cause of action sounding
in patient abandonment warrants dismissal.
10. There was no explicit or valid contract between DR. ANASTASSOV and
plaintiff, therefore no terms were violated and contract breached. What plaintiff
mistakes for a contract for sum certain is actually a treatment plan, which by its
own nature is subject to revision based on findings at surgery and how a patient
heals.
11. A cause of action for breach of contact must also be dismissed as legally
redundant of malpractice claims because plaintiffs do not allege that defendants,
"within the context...[the]treatment,...expressed a specific promise to accomplish
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some definite result"(Leiqhton v Lowenberq, 103 AD3d 530, 531 [1't Dept. 2013];
see also lisi v New York Univ. Med Ctr 24 AD3d 145,147 [1't Dept. 2005]. ln
essence, any breach of contract claim is based on nothing more than the
allegations that defendants promised to carry out the treatment in accord with the
prevailing medical standard (in this instance dental/oral maxillofacial surgical
standard). lfplaintiffs' claim were cognizable as a breach of contract claim, then
every medical malpractice arising from a voluntary physician-patient relationship
could be pleaded in the alternative as a breach of contract.
12. There was no valid contract between plaintiff and DR. ANASTASSOV and
therefore plaintiff's cause of action sounding in breach of contract warrants
dismissal.
13. As asserted in defendants' underlying moving papers, none of the
allegations in plaintiff's Complaint or Verified Bill of Particulars as to DR.
ANASTASSOV and MSS constitute claims that go beyond ordinary dental and
oral surgical malpractice.
14. The court's Decision and Order clearly demonstrates, "the only legal
arguments made by plaintiff's counsel in the opposition papers are directed to the
issue of punitive damages". (Exhibit A)
15. ln sum, the underlying motion for dismissal of plaintiff claims sounding in
patient abandonment and breach of contract was based on solid facts,
supporting case law and common sense. Plaintiff failed to address the relief
requested by DR. ANASTASSOV and MSS in his Affirmation in Opposition and
Affidavit in Opposition and only attempted to address the punitive damages
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issue. Unfortunately, but respectively, it is believed the court overlooked DR.
ANASTASSOV and MSS's parl of their motion seeking dismissal of plaintiff's
claims for patient abandonment and breach of contract because despite
referencing the relief sought by DR. ANASTASSOV the court remained silent and
did not rule regarding this part of the defendants' motion in the Decision and
Order. Fortunately, though, there are sufficient grounds for the granting dismissal
of plaintiff's claims of patient abandonment and breach of contract and no
rebuttal by plaintiff.
16. This motion is timely in all respects as your affirmant served Notice of Entry
on June 6, 2017. No prior relief for this relief has been requested by these
Defendants. (Exhibit F)
WHEREFORE, it is respectfully submitted that this court grant
Defendants', DR. ANASTASSOV and MAXILLOFACIAL SURGERY SERVICES
L.L.C., motion for re-argument and grant DR. ANASTASSOV and
MAXILLOFACIAL SURGERY SERVICES, L.L,C. motions dismissing plaintiff's
claims sounding in a.) patient abandonment and/or constructive abandonment
and b.) breach of contract, and all other non-malpractice causes of action
together with such other and further relief as this court deems just and proper.
Dated: Mineola, New York
June 27,2017
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FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY NEW YORK EDWARD SCARANO, SUSAN SCARANO, lndex No: 80513212012 Plaintiffs, -against- AFFIRMATION DEAN VAFIADIS, D.D.S., lndividually and dlbla NEW YORK SMILE INSTITUTE, GARY RUTH, D.D.S., MAXILLOFACIAL SURGERY SERVICES, L.L.C., GEORGE ANASTRASSOV, M.D., D.D.S., Defendants GEORGE N. KALAMARAS, ESQ., an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms, upon information and belief, the following to be true pursuant to CPLR S 2106 under the penalties of perjury: 1. I am an associate at the law firm of RAWLE & HENDERSON LLP, attorneys of record for defendants, GEORGE ANASTASSOV, M.D., D.D.S. s/h/a GEORGE ANASTRASSOV (hereinafter DR. ANASTASSOV) and MAXILLOFACIAL SURGERY SERVICES, L.L.C.(hereinafter MSS) , in the above captioned matter, as such I am familiar with the facts and circumstances contained herein 2. This affirmation is submitted in support of the defendants' motion to reargue the denial sub silencio of DR. ANASTASSOV and MSS's motion for a.) dismissal of plaintiff's claim sounding in patient abandonment and/or constructive abandonment; b.) dismissal of plaintiff's claim sounding in breach of contract; and 0588699-7 I 1 of 7 FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 For such other and further relief that this courl deems just and proper PROCEDURAL HISTORY 3. Annexed hereto is the Decision and Order of Justice Joan B. Lobis dated May 23, 2017 and uploaded to NYSCEF on May 31, 2017 which addressed several pending motions by various defendants. The Decision states defendants have moved by separate motions for dismissal of various causes of action and other relief and are jointly decided. This courl ultimately granted the motions by GARY RUTH, D.D.S and DR. ANASTASSOV and MSS dismissing all claims for punitive damages with prejudice and striking all mention the terms of wanton, reckless and recklessly from plaintiff's pleadings. This court dismissed defendant's, BABAK GHALILI, D.D.S., complaint with prejudice in its entirety and amended the caption to reflect the dismissal of defendants, GARY GOLDSTEIN, D.D.S, BABAK GHALILI, D.D.S. and MARK KOVALEVSKIY, M,D. The court was silent regarding DR. ANASTASSOV and MSS's motions to a.) dismiss plaintiff's claims of patient abandonment and/or constructive abandonment and b.) dismiss plaintiff's claim sounding in breach of contract.(Exhibit A) 4. Annexed are the underlying papers, as follows: Exhibit B: Copy of the initial moving papers of your affirmant's Order to Show Cause (proposed) and supporting Affirmation. Exhibit C: Totality of the moving exhibits for the underlying motion. Exhibit D: Affirmation in Opposition and Affidavit in Opposition. Exhibit E: Reply Affirmation I0588699-7 2 of 7 FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 5. This action in dental malpractice was commenced by plaintiff serving his Summons and Complaint on or about June 7, 2012 (Exhibit C, Exhibit A underlying papers). lssue was joined on behalf of defendants, DR. ANASTASSOV and MSS, on or about August 1, 2012. (Exhibit C; Exhibit B underlying papers). For the sake of brevity, the case's other relevant procedural history is set forth in the underlying moving papers. (Exhibit B) ARGUMENT 6. lt is respectfully submitted that this court overlooked both the facts and the law when it denied, sub silencio, DR. ANASTASSOV and MSS's motions to dismiss a.) plaintiff's claims in patient abandonment and/or constructive abandonment and b.) plaintiff's claims in breach of contract. As can be seen in the underlying Order to Show Cause, at part "c", the movants sought the dismissal of plaintiff's claims sounding in patient abandonment and/or constructive abandonment against defendants and at part "d", the movants sought the dismissal of plaintiff's claims sounding in breach of contract against defendants as there was no valid contact to breach. 7. ln the coutl's Decision and Order dated May 23, 2017, the court references that DR. ANASTASSOV and MSS "seek dismissal with prejudice pursuant to CPLR $$ 3211 (a)(7) and 3212 of all claims for punitive damages, patient abandonment, and breach of contract..." and "in addition, Dr. Anastassov seeks l0s88699-7 3 of 7 FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 dismissal of all other non-malpractice causes of action in the complaint." (Exhibit A) 8. ln its decision, the court granted the motions dismissing all claims of punitive damages with prejudice against DR. ANASTASSOV and MSS and struck all mention of wanton, reckless and recklessly from plaintiff's pleading. The court remained silent and did proffer a decision as to DR. ANASTASSOV and MSS's pads of their motion seeking dismissal of plaintiff's claims against defendants sounding patient abandonment and breach of contract. 9. As set forth in that supporting affirmation, plaintiff from the time of his initial consultation with DR. ANASTASSOV on September 14,2011 through February 8,2012 was under the continuous care and treatment of DR. ANASTASSOV. lt was plaintiff who missed numerous follow up appointments and abruptly terminated his patienVoral and maxillofacial surgeon relationship with DR. ANASTASSOV on February B, 2012 and therefore his cause of action sounding in patient abandonment warrants dismissal. 10. There was no explicit or valid contract between DR. ANASTASSOV and plaintiff, therefore no terms were violated and contract breached. What plaintiff mistakes for a contract for sum certain is actually a treatment plan, which by its own nature is subject to revision based on findings at surgery and how a patient heals. 11. A cause of action for breach of contact must also be dismissed as legally redundant of malpractice claims because plaintiffs do not allege that defendants, "within the context...[the]treatment,...expressed a specific promise to accomplish l 0s88699-7 4 of 7 FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 some definite result"(Leiqhton v Lowenberq, 103 AD3d 530, 531 [1't Dept. 2013]; see also lisi v New York Univ. Med Ctr 24 AD3d 145,147 [1't Dept. 2005]. ln essence, any breach of contract claim is based on nothing more than the allegations that defendants promised to carry out the treatment in accord with the prevailing medical standard (in this instance dental/oral maxillofacial surgical standard). lfplaintiffs' claim were cognizable as a breach of contract claim, then every medical malpractice arising from a voluntary physician-patient relationship could be pleaded in the alternative as a breach of contract. 12. There was no valid contract between plaintiff and DR. ANASTASSOV and therefore plaintiff's cause of action sounding in breach of contract warrants dismissal. 13. As asserted in defendants' underlying moving papers, none of the allegations in plaintiff's Complaint or Verified Bill of Particulars as to DR. ANASTASSOV and MSS constitute claims that go beyond ordinary dental and oral surgical malpractice. 14. The court's Decision and Order clearly demonstrates, "the only legal arguments made by plaintiff's counsel in the opposition papers are directed to the issue of punitive damages". (Exhibit A) 15. ln sum, the underlying motion for dismissal of plaintiff claims sounding in patient abandonment and breach of contract was based on solid facts, supporting case law and common sense. Plaintiff failed to address the relief requested by DR. ANASTASSOV and MSS in his Affirmation in Opposition and Affidavit in Opposition and only attempted to address the punitive damages l0s88699-7 5 of 7 FILED: NEW YORK COUNTY CLERK 06/27/2017 02:37 PM INDEX NO. 805132/2012 NYSCEF DOC. NO. 311 RECEIVED NYSCEF: 06/27/2017 issue. Unfortunately, but respectively, it is believed the court overlooked DR. ANASTASSOV and MSS's parl of their motion seeking dismissal of plaintiff's claims for patient abandonment and breach of contract because despite referencing the relief sought by DR. ANASTASSOV the court remained silent and did not rule regarding this part of the defendants' motion in the Decision and Order. Fortunately, though, there are sufficient grounds for the granting dismissal of plaintiff's claims of patient abandonment and breach of contract and no rebuttal by plaintiff. 16. This motion is timely in all respects as your affirmant served Notice of Entry on June 6, 2017. No prior relief for this relief has been requested by these Defendants. (Exhibit F) WHEREFORE, it is respectfully submitted that this court grant Defendants', DR. ANASTASSOV and MAXILLOFACIAL SURGERY SERVICES L.L.C., motion for re-argument and grant DR. ANASTASSOV and MAXILLOFACIAL SURGERY SERVICES, L.L,C. motions dismissing plaintiff's claims sounding in a.) patient abandonment and/or constructive abandonment and b.) breach of contract, and all other non-malpractice causes of action together with such other and further relief as this court deems just and proper. Dated: Mineola, New York June 27,2017 /