Courts May Not Grant Withdrawn Summary-Judgment Relief; Dental-Malpractice Movants Must Rebut the Bill of Particulars with Nonconclusory, Document-Supported Expert Proof

1. Introduction

Rosenzweig v Singer (2026 NY Slip Op 03836 [App Div, 2d Dept June 17, 2026]) is a Second Department decision arising from a dental malpractice action brought by a former infant patient, Bart P. Rosenzweig, against multiple dental providers, including Jack Hirsch and related professional entities (the “Hirsch defendants”) and Alan B. Singer.

The plaintiff alleged missed opportunities to detect a later-diagnosed ameloblastoma (a benign jaw tumor), ultimately treated surgically in 2017. After discovery, the defendants sought dispositive relief. The appeal primarily presented:

  • A procedural issue: whether Supreme Court could grant a branch of the Hirsch defendants’ motion for summary judgment after that branch had been withdrawn before decision.
  • A merits issue: whether Singer met his prima facie burden for summary judgment in a dental malpractice claim where his expert relied on external guidelines not provided and offered conclusory opinions on detectability and departure.

2. Summary of the Opinion

The Second Department dismissed the direct appeal from the order (because judgments were entered), but reviewed the issues on the appeals from the judgments. It held:

  1. Hirsch defendants: Supreme Court erred by granting summary judgment on post–October 14, 2007 malpractice allegations because that summary-judgment branch had been specifically withdrawn before decision. The Appellate Division deemed the branch withdrawn and reinstated that portion of the malpractice claim.
  2. Singer: Supreme Court erred in granting summary judgment. Singer failed to satisfy his prima facie burden because his expert relied on American Dental Association guidelines that were not attached and offered conclusory opinions failing to negate departure and causation, including whether the ameloblastoma was detectable at the relevant time. The claim against Singer was reinstated.

3. Analysis

3.1. Precedents Cited

  • Matter of Aho, 39 NY2d 241, 248: Cited for the appellate practice rule that the right of direct appeal from an order terminates upon entry of judgment; review proceeds via appeal from the judgment.
  • JER Realty, LLC v Pick & Pack Hub, LLC, 236 AD3d 1004, 1004: Reinforces the same principle as Matter of Aho in the Second Department’s practice.
  • Howe v Jeremiah, 62 AD3d 751, 751: The key procedural authority supporting reversal: a court should not grant relief that has been withdrawn before determination. The Rosenzweig court applied this to the Hirsch defendants’ withdrawn summary-judgment branch.
  • Many v Lossef, 190 AD3d 721, 722, quoting Nelson v Lighter, 179 AD3d 933, 934: Provides the standard elements of dental malpractice—departure from accepted standards and proximate causation.
  • Cujcuj v Jayadevan, 218 AD3d 436, 437 (and Schmidt v Bangiyev, 210 AD3d 924, 924): Describes the defendant’s prima facie burden on summary judgment: show no departure, or that any departure did not proximately cause injury.
  • Koi Hou Chan v Yeung, 66 AD3d 642, 643 and LaVecchia v Bilello, 76 AD3d 548, 548: Establish that a medical/dental malpractice movant must “address and rebut” the specific allegations in the bill of particulars. LaVecchia is also used in Rosenzweig for the evidentiary point that reliance on guidelines not submitted with the motion undermines the movant’s showing.
  • Mathias v Capuano, 153 AD3d 698, 699: Supports denying summary judgment where the movant fails to eliminate triable issues or to rebut the specific pleaded particulars.
  • Folkes v Brooklyn Oak Dental Care, P.C., 241 AD3d 508, 509 and Fagan v Panchal, 77 AD3d 705, 706: Cited for the principle that conclusory expert assertions are insufficient to meet a movant’s prima facie burden in malpractice summary judgment practice.
  • Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853: Invoked to emphasize a core summary-judgment rule: if the defendant fails to meet the prima facie burden, the motion must be denied “regardless of the sufficiency of the opposing papers.”

3.2. Legal Reasoning

A. The “withdrawn branch” error (Hirsch defendants)

The Second Department focused on the motion’s procedural posture. The Hirsch defendants initially sought both (i) partial statute-of-limitations relief and (ii) summary judgment on the merits. Before decision, however, they served an amended notice of motion and clarified in support papers that the motion was “amended to remove all of the relief initially sought other than dismissal ... as time-barred.”

Supreme Court nonetheless granted the (withdrawn) merits-based summary judgment branch as to post–October 14, 2007 acts. Citing Howe v Jeremiah, 62 AD3d 751, 751, the Appellate Division held this was error: the court should not award relief that the movant has withdrawn before adjudication.

Practically, the appellate remedy was procedural as well: the branch was “deemed withdrawn” and the post-limitations portion of the malpractice claim was reinstated.

B. Singer’s failure to meet the prima facie burden (merits)

On Singer’s motion, the Second Department applied settled malpractice summary-judgment standards:

  • The movant must negate departure and/or causation (Cujcuj v Jayadevan, 218 AD3d 436, 437; Schmidt v Bangiyev, 210 AD3d 924, 924).
  • The movant must specifically “address and rebut” the malpractice allegations in the bill of particulars (Koi Hou Chan v Yeung, 66 AD3d 642, 643; LaVecchia v Bilello, 76 AD3d 548, 548).

Singer’s showing failed for two evidentiary/analytic reasons highlighted by the court:

  1. Guideline reliance without submission: Singer’s expert relied in part on “the American Dental Association guidelines,” but those guidelines were not attached to the motion papers. Following LaVecchia v Bilello, 76 AD3d 548, 548, the court treated this as undermining the sufficiency of the expert’s support for the claimed standard of care and compliance.
  2. Conclusory expert opinion on key medical questions: The expert did not adequately explain—nonconclusorily—why the ameloblastoma was not detectable at the time and why Singer’s conduct did not depart from accepted practice, invoking the concerns expressed in Folkes v Brooklyn Oak Dental Care, P.C., 241 AD3d 508, 509 and Fagan v Panchal, 77 AD3d 705, 706.

Because Singer did not satisfy the prima facie burden, the Appellate Division held the motion should have been denied without regard to the plaintiff’s opposition, under Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.

3.3. Impact

  • Motion practice discipline: Rosenzweig reinforces that courts should not grant relief that is no longer sought. Litigants should ensure the record makes withdrawals explicit, and courts should verify which branches remain live at decision time.
  • Stricter evidentiary expectations for expert affidavits: The decision underscores that when an expert’s standard-of-care opinion depends on external professional guidelines, best practice—and, in effect, often a necessity to meet the prima facie burden—is to submit those materials with the motion papers.
  • Detectability and causation require explanation, not conclusion: Especially in delayed-diagnosis settings (here, a jaw tumor), conclusory statements that a condition was “not detectable” are vulnerable on summary judgment. Movants should address what would have been seen, when, and why, tied to the actual allegations in the bill of particulars.
  • Reaffirmation of the Winegrad gatekeeping function: Rosenzweig reiterates that the defendant’s prima facie showing is a threshold requirement; courts may not “save” an inadequate motion by relying on weaknesses in the opponent’s papers.

4. Complex Concepts Simplified

  • Summary judgment: A pretrial ruling that ends a claim when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. In malpractice, defendants typically use expert affidavits to show no deviation from accepted practice and/or no causation.
  • Prima facie burden: The movant’s initial obligation to present evidence strong enough that, if unopposed, it would warrant judgment. If the movant fails here, the motion is denied even if the opponent’s response is weak (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
  • Bill of particulars: A detailed statement specifying the acts or omissions claimed as malpractice. A defendant’s expert must confront these specifics, not merely discuss care in general terms.
  • Departure from accepted practice: Conduct that falls below the professional standard of care for dentists under the circumstances.
  • Proximate cause: A sufficiently direct causal link between the alleged departure and the injury—here, whether alleged failures in examination/imaging contributed to delayed detection and resulting harm.
  • “Deemed withdrawn” motion branch: If a party formally withdraws a request for relief before the court decides it, the court should not rule on it as though it remained pending.

5. Conclusion

Rosenzweig v Singer delivers two practical lessons with doctrinal force. First, a court should not grant a summary-judgment branch that the movant has withdrawn before decision, warranting reversal as to the Hirsch defendants. Second, in dental malpractice summary judgment practice, a defendant’s expert must concretely rebut the bill of particulars and support any guideline-based standard-of-care opinions with the underlying materials; conclusory assertions—particularly on detectability and departure—will not satisfy the prima facie burden, requiring denial under Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853.