BUSTI LEARY v. MANCUSO (1999)

In an action to recover damages for dental malpractice, etc., (1) the plaintiffs appeal from an order of the Supreme Court, Kings County (Patterson, J.), dated March 3, 1998, which granted the defendant's motion for partial summary judgment dismissing the complaint insofar as it asserts causes of action based on treatment which occurred prior to September 16, 1992, and (2) the defendant appeals from so much of an order of the same court, dated May 15, 1998, as granted that branch of the plaintiffs' motion which was for renewal and, upon renewal, denied the defendant's motion.

ORDERED that the appeal from the order dated March 3, 1998, is dismissed as academic, in light of our determination of the appeal from the order dated May 15, 1998;  and it is further,

ORDERED that the order dated May 15, 1998, is affirmed insofar as appealed from;  and it is further,

ORDERED that the appellants-respondents are awarded one bill of costs.

In response to the plaintiffs' action to recover damages for dental malpractice, etc., the defendant asserted a defense based on the two and one-half year Statute of Limitations (see, CPLR 214-a).   In opposition, the plaintiffs asserted that the defendant undertook a course of treatment for the plaintiff Theresa Busti-O'Leary's periodontal condition so as to toll the Statute of Limitations under the continuous treatment doctrine.

Upon renewal, the Supreme Court properly denied the defendant's motion which was to dismiss the cause of action of the plaintiff Theresa C. Busti-O'Leary to recover damages for dental malpractice for treatment rendered prior to September 16, 1992.   There is a factual issue as to whether the defendant provided a continuous course of treatment for the specific condition which gave rise to the instant action (see, CPLR 214-a;  Nykorchuck v. Henriques, 78 N.Y.2d 255, 257-258, 573 N.Y.S.2d 434, 577 N.E.2d 1026;  Kimiatek v. Post, 240 A.D.2d 372, 658 N.Y.S.2d 403;  Cantor v. Visvikis, 233 A.D.2d 286, 649 N.Y.S.2d 801;  Parker v. Jankunas, 227 A.D.2d 537, 642 N.Y.S.2d 959).

The defendant's remaining contention is without merit.

MEMORANDUM BY THE COURT.