Perrino v. Maguire

• Decision Date: 27 March 2009
• Docket Number: CA 08-00185
• Citation: 2009 NY Slip Op 02425,876 N.Y.S.2d 305,60 A.D.3d 1477
• Parties: MATTHEW PERRINO, Appellant, v. FRANCIS T. MAGUIRE, DDS, Defendant, and JEFFREY R. KUNTZ, DDS, Respondent. (Appeal No. 2.)
• Court: New York Supreme Court — Appellate Division

60 A.D.3d 1477

876 N.Y.S.2d 305

2009 NY Slip Op 02425

MATTHEW PERRINO, Appellant, v. FRANCIS T. MAGUIRE, DDS, Defendant, and JEFFREY R. KUNTZ, DDS, Respondent. (Appeal No. 2.)

CA 08-00185

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided March 27, 2009.

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered January 2, 2008 in a dental malpractice action. The order granted the motion of defendant Jeffrey R. Kuntz, DDS for partial summary judgment.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: On September 22, 2004, plaintiff commenced this dental malpractice action alleging, inter alia, that Jeffrey R. Kuntz, DDS (defendant) failed to monitor, diagnose and treat plaintiff "for conditions related to a keratocyst in [his] mouth." Defendant moved for partial summary judgment dismissing as time-barred those parts of the complaint concerning his alleged negligent acts or omissions prior to March 22, 2002 (see CPLR 214-a). We conclude that Supreme Court properly granted the motion.

Defendant met his initial burden by establishing that more than 2½ years elapsed between the date of the acts or omissions in question and the commencement of the action (see id.; Schreiber v Zimmer, 17 AD3d 342, 343 [2005]), and plaintiff failed to raise a triable issue of fact whether the statute of limitations was tolled by the continuous treatment doctrine (see Massie v Crawford, 78 NY2d 516, 519-520 [1991], rearg denied 79 NY2d 978 [1992]; Nailor v Oberoi, 237 AD2d 898 [1997]). Although plaintiff was treated by defendant for general dental purposes during the period in which the recurrent keratocyst remained undiagnosed, plaintiff failed to raise a triable issue of fact whether defendant engaged in a course of treatment for that condition (see Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]; DeMarco v Santo, 43 AD3d 1285 [2007]; Leifer v Parikh, 292 AD2d 426, 427-428 [2002]). Even assuming, arguendo, that defendant was aware of plaintiff's original keratocyst, we conclude that his awareness of that condition does not, by itself, establish that he engaged in a course of treatment for the recurrent keratocyst (see Nykorchuck, 78 NY2d at 258-259; DeMarco, 43 AD3d 1285 [2007]).

Present — CENTRA, J.P., PERADOTTO, CARNI, GREEN and PINE, JJ.