LEE v. GOLDMAN (1998)

In an action to recover damages for dental malpractice, the defendant appeals from so much of an amended order of the Supreme Court, Kings County (Levine, J.), dated November 7, 1997, as denied that branch of his motion which was for partial summary judgment dismissing portions of the verified complaint as time-barred.

ORDERED that the amended order is affirmed insofar as appealed from, with costs.

Contrary to the defendant's contentions, the plaintiffs' submissions in opposition to the application for partial summary judgment, including the defendant's own treatment chart and deposition testimony, and the deposition testimony of the plaintiff Anna Lee, sufficed to raise a triable issue of fact regarding whether the defendant engaged in continuous treatment of Anna's periodontal condition so as to toll the Statute of Limitations (see, McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108;  see, e.g., Easton v. Kellerman, 248 A.D.2d 913, 670 N.Y.S.2d 618;  Kimiatek v. Post, 240 A.D.2d 372, 658 N.Y.S.2d 403;  Parker v. Jankunas, 227 A.D.2d 537, 642 N.Y.S.2d 959).   Furthermore, since the acts of alleged dental malpractice occurred before July 1, 1985, the abbreviated limitations period found in CPLR 214-a is inapplicable (see, L.1985, ch. 760, § 10), and this action is governed by a three-year Statute of Limitations (see, Ciciless v. Lane, 129 A.D.2d 759, 514 N.Y.S.2d 752).

MEMORANDUM BY THE COURT.