| Zito v Jastremski |
| 2009 NY Slip Op 00375 [58 AD3d 724] |
| January 20, 2009 |
| Appellate Division, Second Department |
| Denice LaBarca Zito, Appellant, v Edward Jastremski etal., Respondents, et al., Defendant. |
—[*1] Kanterman, O'Leary & Soscia, LLP, Jamaica, N.Y. (Joseph D. Furlong of counsel), forrespondents.
In an action, inter alia, to recover damages for dental malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Richmond County(Straniere, J.), entered August 24, 2007, as granted that branch of the motion of the defendantsEdward Jastremski and Edward Jastremski, D.D.S., P.C., which was for summary judgmentdismissing so much of the complaint as sought to recover damages for dental malpracticerelating to treatment rendered prior to November 12, 2001, insofar as asserted against them.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendants Edward Jastremski and Edward Jastremski, D.D.S., P.C.,which was for summary judgment dismissing so much of the complaint as sought to recoverdamages for dental malpractice relating to treatment performed on teeth three, four, and fiveprior to November 12, 2001, insofar as asserted against them and substituting therefor aprovision denying that branch of the motion; as so modified, the order is affirmed insofar asappealed from, without costs or disbursements.
The plaintiff commenced this action on May 11, 2004 alleging, inter alia, that the defendantsEdward Jastremski, a dentist, and his practice, Edward Jastremski, D.D.S., P.C. (hereinaftertogether the defendants), rendered negligent dental treatment from October 1997 through July2003. The plaintiff [*2]alleged that the defendants were negligentin, among other things, installing a defective bridge spanning teeth three, four, and five;providing improper post and core and crown work on tooth 14; causing the loss of teeth 3, 14,and 15; and performing unnecessary root canal therapy on teeth 14 and 15.
The defendants moved for summary judgment dismissing all claims of malpractice alleged tohave accrued prior to November 12, 2001, on the ground that those claims were barred by therelevant 2½-year statute of limitations (see CPLR 214-a). In opposition to themotion, the plaintiff argued that the defendants treated teeth three, four, and five from June 14,1999, tooth 14 from May 18, 2001, and tooth 15 from October 15, 1997, and that the continuoustreatment doctrine defeated the defendants' contention that the claims as to those teeth weretime-barred. The Supreme Court, inter alia, awarded the defendants summary judgmentdismissing all claims for alleged malpractice occurring prior to November 12, 2001. We modify.
The defendants made a prima facie showing of their entitlement to judgment as a matter oflaw by demonstrating that the claims based upon dental malpractice referable to treatmentrendered prior to November 12, 2001, were time-barred (see Massie v Crawford, 78NY2d 516, 519 [1991]; Kasten v Blaustein, 214 AD2d 539 [1995]). The burden thenshifted to the plaintiff to raise a triable issue of fact as to whether the continuous treatmentdoctrine applied (see Lane v Feinberg, 293 AD2d 654, 655 [2002]; Kasten vBlaustein, 214 AD2d at 539).
Contrary to the plaintiff's contentions, the court properly determined that she was not entitledto the benefit of the continuous treatment doctrine with respect to the claims involving teeth 14and 15. It thus properly awarded summary judgment to the defendants dismissing the claimsarising out of the treatment they rendered to those teeth prior to November 12, 2001, on theground that the claims were time-barred (see CPLR 214-a; Lane v Feinberg, 293AD2d at 655). With respect to those teeth, while the dental records demonstrate that the plaintiffand the defendants were engaged in an ongoing dentist-patient relationship, the plaintiff failed toshow that the treatment after November 12, 2001 constituted "continuous treatment for the sameillness, injury, or condition underlying the subject causes of action" that was alleged in thecomplaint and supplemental bill of particulars (Lane v Feinberg, 293 AD2d at 655;see CPLR 214-a; Bender v Fischburg, 272 AD2d 425 [2000]; Juba vBachman, 255 AD2d 492 [1998]; Kasten v Blaustein, 214 AD2d 539 [1995]).
However, the plaintiff raised a triable issue of fact as to whether the defendants continuouslytreated a bridge which spanned teeth three, four, and five by, among other things, permanentlycementing it in 2003. The dental records and Jastremski's affidavit reveal ongoing appointmentsand work relating to the bridge within the relevant limitations period. Based upon this evidencewe cannot conclude, as a matter of law, that the continuous treatment doctrine is inapplicable(see Parker v Jankunas, 227 AD2d 537, 538 [1996]) to the plaintiff's claims against thedefendants pertaining to teeth 3, 4, and 5. The nature, context, and timeliness of the contactsbetween the plaintiff and the defendants present triable issues of fact as to the possibleapplication of the continuous treatment doctrine (id.). Accordingly, the court should havedenied that branch of the defendants' motion which was for summary judgment dismissing theplaintiff's claims pertaining to teeth three, four, and five, insofar as asserted against them, to theextent that the claims involved treatment rendered with respect to those teeth prior to November12, 2001.
Since there was sufficient evidence in the record to raise a triable issue of fact withoutconsidering [*3]certain disputed deposition testimony, it isunnecessary for us to reach the issue of whether that testimony was admissible in opposition tothe motion. Rivera, J.P., Santucci, Carni and Dickerson, JJ., concur.