Leighton v. Lowenberg, 103 A.D.3d 530 (N.Y. App. Div. 2013). · Go Syfert
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Leighton v. Lowenberg, 103 A.D.3d 530 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases · …an expert affirmation stating with certainty that the information defendant allegedly provided to plaintiff before the medical procedures at issue departed from what a reasonable practitioner would have disclosed at p. 530 ✓
17 citation events (17 in the last 25 years) across 4 distinct courts.
Top citers, strongest first. 6 distinct citers. How cited ↗
cited Cited as authority (rule) Boutov v. Hanson
N.Y. Sup. Ct., New York Cty. · 2026 · confidence medium
NO. 42 RECEIVED NYSCEF: 03/17/2026 [medical] procedures at issue departed from what a reasonable practitioner would have disclosed” (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]).
discussed Cited as authority (rule) Pekerman v. Chessin
N.Y. Sup. Ct., New York Cty. · 2025 · confidence medium
Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting “an expert affirmation stating with certainty that the information defendant[ ] allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed” (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]).
discussed Cited as authority (rule) Marino v. New York & Presbyt. Hosp.
N.Y. Sup. Ct., New York Cty. · 2025 · confidence medium
Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting “an expert affirmation stating with certainty that the information defendant[ ] allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed” (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]).
discussed Cited as authority (rule) Bivona v. Gupta
N.Y. Sup. Ct., New York Cty. · 2025 · confidence medium
Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting “an expert affirmation stating with certainty that the information defendants allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed” (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]). 452939/2021 BIVONA, ANTHONY G. vs.
discussed Cited as authority (rule) Lopez v. Topal
N.Y. App. Term. · 2018 · confidence medium
Plaintiff's cause of action for punitive damages was also properly dismissed, since New York does not recognize an independent cause of action for punitive damages ( see Jean v Chinitz , 163 AD3d 497 , 498 [2018]) and the alleged conduct falls short of showing the high degree of moral turpitude, wanton dishonesty and utter malice [*2] necessary to an award of punitive damages ( see Leighton v Lowenberg , 103 AD3d at 530-531).
discussed Cited as authority (rule) B.F. v. Reproductive Medicine Associates of New York, LLP (2×)
N.Y. App. Div. · 2015 · confidence medium
Ctr. , 114 AD2d 254, 256 [1st Dept 1986]), this is not the case here, given that plaintiffs, to prove their claim, must proffer expert testimony concerning the standard of care for the screening of egg donors. [FN5] The cause of action for breach of contract must also be dismissed as legally redundant of the malpractice claims because plaintiffs do not allege that defendants, "within the context of . . . [the] treatment, . . . expressed a specific promise to accomplish some definite result" ( Leighton v Lowenberg , 103 AD3d 530, 531 [1st Dept 2013]; see also Scalisi v New York Univ.
Retrieving the full opinion text from the archive…
Patricia Leighton
v.
Marc Lowenberg, D.D.S.
Appellate Division of the Supreme Court of the State of New York.
Feb 21, 2013.
103 A.D.3d 530
Cited by 7 opinions  |  Published

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 plaintiffs 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 plaintiffs 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 plaintiffs 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.

Plaintiff’s allegations that defendants negligently placed a veneer on one of her teeth, intentionally misled her to believe that she would receive the “picket fence” dental treatment, and gave her precision dentures despite a lack of experience in this area, do not rise to the level of gross negligence, as the alleged conduct does not “smack” of intentional wrongdoing (see Apple Bank for Sav. v PricewaterhouseCoopers LLP, 70 AD3d 438, 438 [1st Dept 2010] [internal quotation marks omitted]). Plaintiffs allegations do not sufficiently state anything other than dental malpractice claims. The alleged conduct also “falls short of[*531] showing the high degree of moral turpitude, wanton dishonesty and utter malice necessary to an award of punitive damages” (Board of Mgrs. of the Waterford Assn., Inc. v Samii, 68 AD3d 585, 586 [1st Dept 2009] [internal quotation marks omitted]).

Plaintiff’s proposed breach of contract claim is “legally redundant” of the dental malpractice claim, and plaintiff has failed to show that, within the context of her dental treatment, defendants expressed a specific promise to accomplish some definite result (Scalisi v New York Univ. Med. Ctr., 24 AD3d 145, 147 [1st Dept 2005]). Defendants’ alleged promises to make plaintiff look “gorgeous” are insufficient.

Plaintiff has not shown that there had been a sale within the meaning of the Uniform Commercial Code (UCC) so as to give rise to any implied warranties under section 2-315 of the UCC. Indeed, the dental items plaintiff identified in her complaint are not “goods” within the meaning of section 2-315. Rather, they are items that were “incidental part[s] of the services rendered” by defendants in the course of plaintiffs dental treatment (see Osborn v Kelley, 61 AD2d 367, 369 [3d Dept 1978]). Concur— Friedman, J.P., Sweeny, Renwick, Freedman and Roman, JJ. [Prior Case History: 2011 NY Slip Op 31804(U).]