POLICHETTI v. COHEN (2000)

 In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated December 2, 1998, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant made out a prima facie case for summary judgment.   In opposition, the plaintiff established the existence of triable issues of fact.   The plaintiff submitted a dentist's affidavit of merit stating that the defendant's failure to advise the plaintiff of the potential risks involved in the dental procedure, or to notify him that a dental file had broken off inside his tooth, was a departure from accepted practice which proximately caused his injury (see, DeStefano v. Immerman, 188 A.D.2d 448, 591 N.Y.S.2d 47;  Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y.S.2d 411).

 The broken dental file which was left inside of the plaintiff's tooth is a “foreign object” within the meaning of CPLR 214-a, which delayed the running of the Statute of Limitations until the date the foreign object was or reasonably should have been discovered (see, Rockefeller v. Moront, 81 N.Y.2d 560, 601 N.Y.S.2d 86, 618 N.E.2d 119;  Carmona v. Lutheran Med. Ctr., 238 A.D.2d 535, 656 N.Y.S.2d 693).

The defendant's remaining contention was not raised before the Supreme Court and is therefore not properly before this court (see, Gross v. Aetna Cas. & Sur. Co., 240 A.D.2d 468, 658 N.Y.S.2d 137).

MEMORANDUM BY THE COURT.