| Miccio v Gerdis |
| 2014 NY Slip Op 05847 [120 AD3d 639] |
| August 20, 2014 |
| Appellate Division, Second Department |
[*1]
| Laura Miccio et al., Respondents, v ElliotGerdis, D.D.S., et al., Appellants. |
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia andGlenn A. Kaminska of counsel), for appellants.
Robert F. Danzi, Westbury, N.Y. (Christine Coscia of counsel), for respondents.
In an action, inter alia, to recover damages for dental malpractice, etc., the defendantsappeal from an order of the Supreme Court, Suffolk County (LaSalle, J.), dated March 6,2013, which denied their motion, inter alia, for summary judgment dismissing thecomplaint as to any claims arising on or before April 1, 2008.
Ordered that the order is affirmed, with costs.
The plaintiffs alleged, among other things, that the defendants were negligent infailing to diagnose and treat the plaintiff Laura Miccio's condition of loosening teeth dueto inadequate bone support and receding gums, and failing to diagnose a tumor whichwas causing her gums and jaw bone to deteriorate.
The defendants established their prima facie entitlement to judgment as a matter oflaw dismissing the claims arising on or before April 1, 2008, by demonstrating that theaction was not commenced by filing until October 1, 2010 (see Cox v KingsboroMed. Group, 88 NY2d 904, 906 [1996]; Peykarian v Yin Chu Chien, 109 AD3d 806, 807 [2013];Fraumeni v Oakwood DentalArts, LLC, 108 AD3d 495, 496 [2013]; Salerno v Huntington Hosp. Dolan Family Health Ctr., Inc., 98AD3d 730 [2012]; Gomezv Katz, 61 AD3d 108, 113 [2009]). However, in opposition, the plaintiffs raisedtriable issues of fact as to whether Laura Miccio received continuous treatment for herloose teeth and receding gums, which allegedly were symptomatic of the tumor thedefendants failed to diagnose. The failure to make the correct diagnosis as to theunderlying condition while continuing to treat the symptoms does not mean, for purposesof continuity, that there has not been treatment (see Hein v Cornwall Hosp., 302AD2d 170, 174 [2003]; Dellert v Kramer, 280 AD2d 438 [2001]). Thus, aphysician or hospital cannot defeat the application of the continuous treatment doctrinemerely because of a failure to make a correct diagnosis as to the underlying condition,where it treated the patient continuously over the relevant time period for symptoms thatare ultimately traced to that condition (see Chestnut v Bobb-McKoy, 94 AD3d 659, 661 [2012];Chkhartishvili v Volovoy,44 AD3d 893, 893-894 [2007]; Couch v County of Suffolk, 296 AD2d 194,197 [2002]).
[*2] The defendants' remainingcontentions are without merit.
Thus, the Supreme Court properly denied the defendants' motion, inter alia, forsummary judgment dismissing the complaint as to any claims arising on or before April1, 2008. Mastro, J.P., Dickerson, Hinds-Radix and Duffy, JJ., concur. [Prior CaseHistory: 2013 NY Slip Op 30506(U).]