        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

292
CA 10-00141
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


FRANK G. CYZOWSKI,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

WILLIAM J. ELKOVITCH, D.D.S.,
DEFENDANT-APPELLANT.


HANCOCK & ESTABROOK, LLP, SYRACUSE (ALAN J. PIERCE OF COUNSEL), FOR
DEFENDANT-APPELLANT.

COTE & VAN DYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (David
Michael Barry, J.), entered January 4, 2010 in a dental malpractice
action. The order denied the respective motions of the parties for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Supreme Court properly denied defendant’s motion for
summary judgment dismissing the complaint in this dental malpractice
action. In support of the motion, defendant submitted his own
deposition as well as the deposition of plaintiff, which present
differing versions of the symptoms allegedly presented by plaintiff at
an August 11, 2003 examination. Moreover, the experts who submitted
affidavits on behalf of defendant address the issue of alleged
malpractice based on defendant’s description of the symptoms presented
by plaintiff, without taking into account plaintiff’s version of his
symptoms. As defendant correctly concedes in his brief on appeal, the
nature of plaintiff’s symptoms is central to the issue of whether
defendant properly diagnosed plaintiff’s disease or referred him to a
specialist in a timely fashion. Thus, defendant is not entitled to
summary judgment dismissing the complaint at this juncture of the
litigation (see Fagan v Panchal, 77 AD3d 705; Padilla v
Verczky-Porter, 66 AD3d 1481, 1482-1483; Matter of Kreinheder v
Withiam-Leitch, 66 AD3d 1485). Finally, we note that plaintiff’s
cross appeal from the order insofar as it denied his cross motion for
                                 -2-                           292
                                                         CA 10-00141

a ruling in limine and for partial summary judgment was deemed
abandoned and dismissed pursuant to 22 NYCRR 1000.12 (b).




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
