PATRICIA LEIGHTON, plf-ap, v. MARC LOWENBERG, D.D.S. def-res, NBC UNIVERSAL, INC., def

9315. PATRICIA LEIGHTON, plf-ap, v. MARC LOWENBERG, D.D.S. def-res, NBC UNIVERSAL, INC., def — Andrew Molbert, New York, for ap — Martin Clearwater & Bell, LLP, New York (Stewart G. Milch of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 5, 2011, which, in this dental malpractice action, to the extent appealed from as limited by the briefs, denied plaintiff's motion to amend the complaint to add a cause of action for lack of informed consent, granted the dentist defendants' (defendants) motion for partial summary judgment dismissing plaintiff's gross negligence and breach of implied warranty claims and her demand for punitive damages, and denied plaintiff's cross motion for leave to amend the complaint to add a claim for breach of contract and to further particularize facts concerning her claims for lack of informed consent, gross negligence, and breach of contract, unanimously affirmed, without costs.

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9315. PATRICIA LEIGHTON, plf-ap, v. MARC LOWENBERG, D.D.S. def-res, NBC UNIVERSAL, INC., def — Andrew Molbert, New York, for ap — Martin Clearwater & Bell, LLP, New York (Stewart G. Milch of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered on or about July 5, 2011, which, in this dental malpractice action, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to amend the complaint to add a cause of action for lack of informed consent, granted the dentist defendants’ (defendants) motion for partial summary judgment dismissing plaintiff’s gross negligence and breach of implied warranty claims and her demand for punitive damages, and denied plaintiff’s cross motion for leave to amend the complaint to add a claim for breach of contract and to further particularize facts concerning her claims for lack of informed consent, gross negligence, and breach of contract, unanimously affirmed, without costs.

The court providently exercised its discretion in denying plaintiff’s request for leave to amend the complaint to add lack of informed consent claims. Plaintiff failed to submit an expert affirmation stating with certainty that the information defendants allegedly provided to plaintiff before the dental procedures at issue departed from what a reasonable practitioner would have disclosed (see Orphan v. Pilnik, 15 NY3d 907, 908 [2010]). Further, the numerous unauthenticated audio recordings upon which plaintiff heavily relies are insufficient to independently establish the merit of her proposed amendment.

PATRICIA LEIGHTON, plf-ap, v. MARC LOWENBERG, D.D.S. def-res, NBC UNIVERSAL, INC., def

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