| Keselman v Webber |
| 2008 NY Slip Op 09361 [56 AD3d 728] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Vladimir Keselman, Respondent, v Bryan Webber,Appellant. |
—[*1] Marina Trubitsky & Associates, PLLC, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for dental malpractice, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.),dated June 14, 2007, as denied that branch of his motion which was to dismiss the complaint astime-barred pursuant to CPLR 3211 (a) (5), and granted that branch of the plaintiff's cross motionwhich was for leave to amend the complaint to assert a cause of action sounding in fraud.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, thatbranch of the defendant's motion which was to dismiss the complaint as time-barred is granted,and that branch of the cross motion which was for leave to amend the complaint to assert a causeof action sounding in fraud is denied.
The plaintiff alleges that on May 27, 2003, the defendant, at a clinic, performed a root canalprocedure on his tooth, after which he suffered severe pain on and around the tooth. According tothe plaintiff, some two months after that procedure was performed, the defendant informed himthat the root canal of that tooth was "not straight" and that he, the defendant, could not treat it anyfurther. Additionally, Dr. Caravana, also a dentist and an owner of the clinic, informed him thatno dentist at that clinic could treat that tooth any further.
A different dentist removed the tooth roughly two years and five months after the defendantcompleted the initial root canal procedure. The plaintiff subsequently commenced this action by[*2]filing a summons and complaint on July 28, 2006, alleging,inter alia, causes of action based on dental malpractice and breach of contract.
The Supreme Court erred in denying that branch of the defendant's motion which was todismiss the action for failure to commence it within the 2½-year period prescribed by theapplicable statute of limitations (see CPLR 214-a) by relying upon the doctrine ofequitable estoppel. It is clear from the plaintiff's allegations that two months after the defendantperformed the root canal procedure, he had informed the plaintiff of problems with thatprocedure. The plaintiff also was aware at that time that he would receive no further treatmentfrom the defendant or any other dentists associated with the clinic where he was treated. Uponthese facts, it cannot be said that the plaintiff was induced by the defendant's "fraud,misrepresentations or deception" to delay the commencement of this action (Simcuski vSaeli, 44 NY2d 442, 449 [1978]). Therefore, the Supreme Court should not have applied thedoctrine of equitable estoppel to toll the statute of limitations in this action (see Putter vNorth Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006]; Eagleston v Mt. Sinai Med. Ctr.,144 AD2d 427, 429 [1988]; McIvor v Di Benedetto, 121 AD2d 519, 523 [1986]).Since the defendant met his burden of establishing that the applicable statute of limitations hadexpired, he was entitled to dismissal of the plaintiff's claims sounding in dental malpractice(see Assad v City of New York, 238 AD2d 456 [1997]).
We also agree with the defendant that the plaintiff cannot avoid the statute of limitations byattempting to phrase his claim as one based upon breach of contract. The plaintiff failed to allegedamages for his breach of contract claim that are distinct from those of his malpractice claim(see Robins v Finestone, 308 NY 543, 546 [1955]; Catapano v Winthrop Univ.Hosp., 19 AD3d 355 [2005]; Monroe v Long Is. Coll. Hosp., 84 AD2d 576 [1981]).
Finally, the Supreme Court erred in granting that branch of the plaintiff's cross motion whichwas for leave to amend the complaint to assert a cause of action sounding in fraud against thedefendant. The allegations in the proposed amended complaint failed to demonstrate that thedefendant made an intentional, material misrepresentation with respect to the root canalprocedure, or that the plaintiff relied on such a misrepresentation to his detriment (seegenerally Simcuski v Saeli, 44 NY2d at 451). Moreover, the damages alleged are no differentfrom those alleged to have resulted from the malpractice claim (see Vigliotti v North ShoreUniv. Hosp., 24 AD3d 752 [2005]). Rivera, J.P., Spolzino, Florio and Leventhal, JJ., concur.