Appellate Division, Third Department Case Summaries: June 24, 2008

Appellate Division, Third Department

Dental Malpractice

Informed Consent

Amodio v. Wolpert

503650

Appealed from Supreme Court, Saratoga County

Background: The plaintiff, complaining of a toothache, had a root canal performed by the defendant. Lasting pain and numbness followed and the plaintiff brought this suit for malpractice. The defendant's motion for summary judgment was granted and the plaintiff appeals.

Ruling: The court notes that the defendant bore the initial burden of establishing there was no departure from accepted standards of practice. The defendant did this in his affidavit, detailing the care he provided. The plaintiff's expert simply stated in conclusory fashion that the defendant deviated from the standards of dental care, which was insufficient to rebut the defendant's showing. The dismissal is affirmed.

Sara M. Beaty of Tobin & Grifferty PC for the appellant, and Christina D. Porter of Napierski, Vandenburgh & Napierski LLP for the respondent

Breach of Contract

Broker's Fee

Prime Commercial LLC v. Rogner

503995

Appealed from Supreme Court, Albany County

Background: The plaintiff, a real estate broker, brought suit alleging the defendants refused to pay an agreed-upon broker's fee of about $81,000. The contract of sale indicated the transaction was brought about by the plaintiff's efforts and the defendants agreed to pay a fee of 8 percent to the plaintiff at the time of transfer of title. When the parties closed on the property in January 2005, the defendants refused to pay the broker's fee. Summary judgment was awarded to the plaintiff and this appeal followed.

Ruling: When a contract of sale or lease concedes the broker's performance of services and includes an express promise by the seller to pay the broker's commission, the broker is entitled to summary judgment on its claim for a commission as a third-party beneficiary of the contract or lease. The defendants agreed in the contract of sale that the plaintiff brought about the sale and they would pay the commission as provided in a separate agreement. The defendants are liable. Summary judgment is affirmed.

Robert L. Katzman for the appellants, and Lance R. Hartwich of Parisi, Coan & Saccocio PLLC for the respondent.

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