| Erdogan v Toothsavers Dental Servs., P.C. |
| 2008 NY Slip Op 09832 [57 AD3d 314] |
| December 16, 2008 |
| Appellate Division, First Department |
| Nedim Erdogan, Respondent, v Toothsavers DentalServices, P.C., et al., Appellants. Sol S. Stolzenberg, D.M.D., et al., Third-PartyPlaintiffs-Appellants, v Barry Gordon, D.D.S., Third-PartyDefendant-Appellant. |
—[*1] Marulli, Lindenbaum, Edelman & Tomaszewski, LLP, New York (Francesca M. Erichsen ofcounsel), for Robert Winegarden, D.D.S., appellant. Landman Corsi Ballaine & Ford P.C., New York (Melanie K. Suhrada of counsel), for BarryGordon, D.D.S., appellant. Lutfy & Santora, Staten Island (James L. Lutfy of counsel), for respondent.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered October 15, 2007,which denied the summary judgment motions of defendant practitioners, unanimously modified,on the law, the motions granted to the extent of dismissing the claims for medical malpracticeand lack of informed consent against defendant Gordon and against defendant Stolzenberg in hisindividual capacity, and otherwise affirmed, without costs.
Plaintiff commenced this action in July 2005 against Toothsavers and Drs. Stolzenberg andWinegarden for injuries sustained due to alleged dental malpractice and failure to informregarding foreseeable risks and alternatives associated with procedures performed between Mayand August 2003. The complaint was amended in September 2005 to include Dr. Gordon as aparty defendant, but plaintiff was unable to serve him.
In September 2006, Toothsavers and Dr. Stolzenberg commenced a third-party action againstDr. Gordon, and shortly thereafter, plaintiff amended his summons and complaint (CPLR 1009)to reflect Dr. Gordon's true identity. Dr. Gordon answered this amended complaint and moved todismiss on the ground of statute of limitations (CPLR 214-a), as well as for summary [*2]judgment.
Even though the claims against Dr. Gordon were filed in a timely fashion in 2005, servicewas never effected upon him within the statutory period of limitations. Plaintiff never sought anextension of time to serve his complaint, and the record is devoid of any genuine effort on hispart to ascertain Dr. Gordon's correct identity and address prior to the running of the statute(see e.g. Tucker v Lorieo, 291 AD2d 261 [2002]). Plaintiff failed to establish theapplicability of the relation-back doctrine whereby Dr. Gordon might or should have known thatthe September 2005 complaint would have been brought against him as well (see Cintron vLynn, 306 AD2d 118 [2003]). Accordingly, plaintiff's action as against Dr. Gordon must bedismissed as untimely.
Toothsavers' motion for summary judgment was properly denied in that it failed to establish,as a matter of law, that it was not vicariously liable for the actions of the treating dentists (seeHill v St. Clare's Hosp., 67 NY2d 72, 79 [1986]). The part of Toothsavers' motion, as well asDr. Winegarden's motion for summary judgment, on the ground that they did not commit dentalmalpractice, was also properly denied. Questions of fact were presented (cf. Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]) by the experts' conflicting opinions as to whetherthese defendants departed from the prevailing standard of dental care, and if so, whether suchdeparture resulted in plaintiff's injuries, and whether defendants failed to inform plaintiff offoreseeable risks and alternatives associated with the dental procedures to be performed.
Plaintiff's action against Dr. Stolzenberg, individually, must be dismissed pursuant to astipulation between the parties. Concur—Andrias, J.P., Nardelli, Sweeny, DeGrasse andFreedman, JJ.