| Fraumeni v Oakwood Dental Arts, LLC |
| 2013 NY Slip Op 05042 [108 AD3d 495] |
| July 3, 2013 |
| Appellate Division, Second Department |
| George Fraumeni, Appellant, v Oakwood DentalArts, LLC, et al., Defendants, and Alan Ferretti, D.D.S., et al.,Respondents. |
—[*1] Morris, Duffy, Alonso & Faley, LLP, New York, N.Y. (Anna J. Ervolina of counsel),for respondent Anthony Perugini.
In an action to recover damages for dental malpractice, the plaintiff appeals from somuch of an order of the Supreme Court, Richmond County (McMahon, J.), enteredMarch 12, 2012, as granted that branch of the motion of the defendant Anthony Peruginiwhich was for summary judgment dismissing the complaint insofar as asserted againsthim as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
In February 2007, the defendant Anthony Perugini performed root canal therapy onone of the plaintiff's teeth, finishing the procedure in June 2007. The plaintiff testified ather deposition that, in August 2007, she returned to his office and complained ofthrobbing pain; Perugini examined her tooth and advised that her sensations werenormal. Between August 2007 and the commencement of the instant action on July 22,2010, the plaintiff received no additional examinations or treatments from Perugini. Theplaintiff started seeing another dentist, who told her that Perugini had not properlycompleted the root canal therapy, and that she needed a post and core. On three occasionsbetween April and June 2008, the plaintiff called Perugini's office and, in August 2008,she went to his office, each time speaking with a member of his staff, complaining ofthrobbing pain in the subject tooth and suggesting that Perugini administer the treatmentrecommended by the other dentist. On one of these occasions, Perugini spoke to theplaintiff on the telephone and told her that she did not need a post and core in the subjecttooth, and on the other occasions the same advice was related to her by the staff member.
In support of his motion for summary judgment dismissing the complaint insofar asasserted against him as time-barred, Perugini submitted evidence establishing, primafacie, that the subject treatment ended more than two years and six months prior to thecommencement of this action (see CPLR 214-a; Oviedo v Weinstein, 102AD3d 844, 846 [2013]; Schwelnus v Urological Assoc. of L.I., P.C., 94 AD3d 971,973 [2012]). Consequently, the burden shifted to the plaintiff to present evidence raisinga triable issue of fact as to whether the continuous treatment doctrine tolled thelimitations period (see Oviedo v Weinstein, 102 AD3d at 846). "The continuoustreatment doctrine tolls the statute of limitations for a [dental] malpractice action when,inter alia, the plaintiff demonstrates that he or she continued to seek, and in fact obtainedfrom the defendant . . . during the [*2]relevant period, an actual course of treatment, denoted byaffirmative and ongoing conduct by the [dentist] such as surgery, therapy, or theprescription of medications" (Schwelnus v Urological Assoc. of L.I., P.C., 94AD3d at 973; see generallyGomez v Katz, 61 AD3d 108, 111-113 [2009]).
Here, the plaintiff failed to raise a triable issue as to whether the statute of limitationswas tolled under the continuous treatment doctrine. The record establishes that theplaintiff and Perugini did not mutually agree upon, or contemplate, future consultation ortreatment after August 2007 (see Allende v New York City Health & Hosps.Corp., 90 NY2d 333, 338-339 [1997]; Peters v Asarian, 89 AD3d 1073, 1074 [2011]; Chambers v Mirkinson, 68AD3d 702, 705 [2009]) and that Perugini did not render treatment or examine theplaintiff after August 2007, approximately three years prior to the commencement of thisaction. The plaintiff's telephone conversation with Perugini, during which he allegedlytold her that she did not need a post and core, did not raise a triable issue of fact as towhether she was undergoing an actual course of treatment (see Davis v City of NewYork, 38 NY2d 257, 259 [1975]; Adams v Kohan, 105 AD3d 880, 881 [2013]). Contrary tothe plaintiff's contention, Perugini's disagreement with the treatment recommendation ofa different dentist, and his failure to render the treatment suggested by the other dentistdespite the plaintiff's numerous attempts to obtain that treatment, did not raise a triableissue whether she was undergoing a continuing course of treatment with Perugini(see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297 [1998];Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]; Gomez v Katz, 61AD3d at 112; cf. McDermott v Torre, 56 NY2d 399, 405-406 [1982]).
Accordingly, the Supreme Court properly granted that branch of Perugini's motionwhich was for summary judgment dismissing the complaint insofar as asserted againsthim as time-barred. Skelos, J.P., Angiolillo, Roman and Miller, JJ., concur.