| Giannetto v Knee |
| 2011 NY Slip Op 02351 [82 AD3d 1043] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Stacy Giannetto, Appellant, v Stuart H. Knee et al.,Respondents. |
—[*1] Morris Duffy Alonso & Faley, New York, N.Y. (Betsy K. Silverstine 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, Orange County (Ritter, J.),dated October 8, 2009, as granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing the first cause ofaction sounding in dental malpractice against the defendant Stuart H. Knee, and substitutingtherefor a provision denying that branch of the motion; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
The plaintiff alleged that in November 2003, the defendant Stuart H. Knee committed dentalmalpractice by cutting tooth number 21 in the plaintiff's mouth and performing negligent bridgework. She further alleged that when she complained of pain, Knee recognized that he hadcommitted malpractice, but that, rather than disclose it, he concealed it by misrepresenting thatthe tooth merely needed bonding and by performing that bonding. In January 2004, Knee referredthe plaintiff to another dentist, the defendant Albert Granger. The plaintiff alleges that Granger,too, recognized that Knee had committed malpractice, but likewise did not disclose it, andinstead merely told the plaintiff to go back to Knee and talk to him.
Five years later, in February 2009, the plaintiff commenced this action against Knee, as wellas Granger and Granger's professional corporation (hereinafter the Granger defendants), allegingone cause of action sounding in dental malpractice against Knee, and a cause of action allegingfraud against each of the three defendants. After issue was joined, the defendants moved forsummary judgment dismissing the complaint on the ground that the cause of action allegingdental malpractice was time-barred and that the causes of action alleging fraud were, inter alia,duplicative of the malpractice action, inasmuch as there were no damages arising from thealleged fraud that were distinct from the damages arising from the alleged malpractice. Inopposition, the plaintiff submitted, among other things, her affidavit alleging that as a result ofthe concealment, she did not learn that her [*2]tooth wasdamaged until she visited another dentist in February 2008. The Supreme Court, inter alia,granted the defendants' motion for summary judgment dismissing the complaint.
When a doctor actively conceals his or her own malpractice by subsequently making amaterial and knowing misrepresentation to the patient, on which the patient relies to his or herdetriment, the patient may assert separate causes of action to recover damages for malpracticeand fraud, as long as the damages sustained as a result of the fraud are distinct from the damagessustained as a result of the malpractice (see Simcuski v Saeli, 44 NY2d 442, 452-453[1978]; Keselman v Webber, 56AD3d 728, 729-730 [2008]). Here, however, the plaintiff did not allege that she suffered anydamages from Knee's alleged fraud that were separate from those caused by his allegedmalpractice. Consequently, the Supreme Court properly dismissed the cause of action allegingfraud against Knee (see Abraham v Kosinski, 305 AD2d 1091, 1092 [2003]; Lucianov Levine, 232 AD2d 378, 379-380 [1996]). Likewise, the Supreme Court properly dismissedthe causes of action alleging fraud against the Granger defendants. In support of their motion forsummary judgment dismissing those causes of action, the defendants submitted the verifiedcomplaint and bill of particulars. The allegations against the Granger defendants, when viewed inthe light most favorable to the plaintiff, simply did not amount to a fraud. The plaintiff allegedthat Granger did nothing more than tell the plaintiff to talk to Knee about her complaints (cf. Fisher v DiPietro, 54 AD3d892, 894-895 [2008]). That alleged communication cannot be interpreted as amisrepresentation, much less a knowing misrepresentation (see De Vito v New York Cent.Sys., 22 AD2d 600, 603 [1965]), because it has no express or implied content that may beregarded, in the context in which it was made, as either true or false. Thus, the defendants mettheir prima facie burden of establishing their entitlement to judgment as a matter of law on thecauses of action against the Granger defendants alleging fraud. In opposition, the plaintiff failedto raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557,562-563 [1980]; Stukas v Streiter, 83 AD3d 18 [2dDept 2011]).
The Supreme Court erred, however, in granting that branch of the defendants' motion whichwas for summary judgment dismissing the malpractice cause of action against Knee on the basisof the statute of limitations. Although the defendants established, prima facie, that the action wascommenced well beyond the 2½-year statute of limitations applicable to claims allegingdental malpractice (see CPLR 214-a), the plaintiff raised a triable issue of fact as towhether Knee should be equitably estopped from raising the defense of the statute of limitations."Equitable estoppel is appropriate where the plaintiff is prevented from filing an action within theapplicable statute of limitations due to his or her reasonable reliance on deception, fraud ormisrepresentations by the defendant" (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552-553 [2006];see Simcuski v Saeli, 44 NY2d at 448-449). Whether equitable estoppel applies isgenerally a question of fact (see Vigliottiv North Shore Univ. Hosp., 24 AD3d 752, 755 [2005]), and a mere failure to disclosemalpractice or diagnose a condition does not give rise to equitable estoppel (see Rizk vCohen, 73 NY2d 98 [1989]; Simcuski v Saeli, 44 NY2d at 450; Reichenbaum v Cilmi, 64 AD3d693, 695 [2009]; Bevinetto vSteven Plotnick, M.D., P.C., 51 AD3d 612, 614 [2008]; Dombroski v Samaritan Hosp., 47AD3d 80 [2007]; Coopersmith v Gold, 172 AD2d 982, 983 [1991]). Here, theplaintiff's sworn allegations raised a triable issue of fact as to whether Knee concealed hismalpractice by knowingly misrepresenting her condition and by bonding tooth number 21, aprocedure that the plaintiff alleges he knew was not effective (see Vigliotti v North ShoreUniv. Hosp., 24 AD3d at 755; Szajna v Rand, 131 AD2d 840, 841 [1987]).Additionally, the plaintiff raised a triable issue of fact as to whether she commenced the actionwithin a reasonable time after her discovery of the alleged malpractice (see Edmonds vGetchonis, 150 AD2d 879, 882 [1989]).
The plaintiff's remaining contentions are without merit or not properly before this Court.Rivera, J.P., Balkin, Leventhal and Hall, JJ., concur.