CAVALUZZI v. BEYERS (2003)

In an action to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 28, 2002, which granted the defendant's motion for summary judgment dismissing the complaint.   Justice Adams has been substituted for the late Justice O'Brien (see 22 NYCRR 670.1[c] ).

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant met his initial burden of establishing his entitlement to summary judgment dismissing the complaint on the ground that the action, commenced in July 1999, was time-barred (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The plaintiff expressly limited his dental malpractice claim to allegations of negligence regarding root canal work performed on one particular tooth in 1994, and the action was commenced more than 2 1/2 years after the claim accrued (see CPLR 214-a).

In opposition to the motion, the plaintiff presented sufficient evidence to present a triable issue of fact as to whether the defendant allowed a foreign object to remain in his mouth after completion of the root canal procedure.   In that event, the plaintiff's action would not be time-barred under the “foreign object” exception to the statute of limitations, as the action was commenced within one year of the plaintiff's discovery of the alleged foreign object (CPLR 214-a;  see Rockefeller v. Moront, 81 N.Y.2d 560, 601 N.Y.S.2d 86, 618 N.E.2d 119;  Polichetti v. Cohen, 268 A.D.2d 417, 702 N.Y.S.2d 85).   Accordingly, the defendant's motion for summary judgment should have been denied.