Chavis v. Syracuse Cmty. Health Ctr., Inc.

• Decision Date: 08 June 2012
• Citation: 947 N.Y.S.2d 857,2012 N.Y. Slip Op. 04589,96 A.D.3d 1489
• Parties: Anthony CHAVIS, Plaintiff–Respondent, v. SYRACUSE COMMUNITY HEALTH CENTER, INC., et al., Defendants, and Pasquale Scutari, Jr., D.D.S., Individually and Doing Business as Vitkus & Scutari, D.D.S., P.C., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 1489

947 N.Y.S.2d 857

2012 N.Y. Slip Op. 04589

Anthony CHAVIS, Plaintiff–Respondent,

v. SYRACUSE COMMUNITY HEALTH CENTER, INC., et al., Defendants,andPasquale Scutari, Jr., D.D.S., Individually and Doing Business as Vitkus & Scutari, D.D.S., P.C., Defendant–Appellant.

Supreme Court, Appellate Division, Fourth Department, New York.

June 8, 2012.

Hancock Estabrook, LLP, Syracuse (Ashley D. Hayes of Counsel), for Defendant–Appellant.

Greene & Reid, PLLC, Syracuse (Eugene Lane of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., FAHEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries allegedly resulting from the malpractice of Pasquale Scutari, Jr., D.D.S., individually and doing business as Vitkus & Scutari, D.D.S., P.C. (defendant). Plaintiff alleges that defendant was negligent, inter alia, in failing to remove dental packing and/or foreign material following dental surgery. The surgery was performed in August 2000 and the action was commenced in November 2008. Defendant moved for summary judgment dismissing the complaint against him on alternative grounds, i.e., that the action is time-barred and that defendant performed the surgery in accordance with accepted standards of dental practice. We conclude that Supreme Court properly denied defendant's motion.

First, defendant failed to meet his initial burden on that part of the motion alleging that the action is time-barred. Where, as here, a malpractice “action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier” (CPLR 214–a). It is undisputed that plaintiff discovered the foreign object within one year of the commencement of the action. Further, defendant submitted medical records and other evidence establishing that plaintiff made timely and persistent inquiries to medical and dental professionals with respect to his condition following the surgery. Thus, defendant's own submissions raise a triable issue of fact whether plaintiff discovered facts that would reasonably have led to the discovery of the foreign object more than one year prior to commencing the action ( cf. Cooper v. Edinbergh, 75 A.D.2d 757, 757–758, 427 N.Y.S.2d 810;see generally Wiegand v. Berger, 151 A.D.2d 343, 344–345, 542 N.Y.S.2d 598).

Second, the...