PERRINO v. DDS

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Supreme Court, Appellate Division, Fourth Department, New York.

Matthew PERRINO, Plaintiff-Appellant, v. Francis T. MAGUIRE, DDS, Defendant, Jeffrey R. Kuntz, DDS, Defendant-Respondent.  (Appeal No. 2.)

Decided: March 27, 2009

PRESENT:  CENTRA, J.P., PERADOTTO, CARNI, GREEN, AND PINE, JJ. Law Offices of Eugene C. Tenney, Buffalo (Nathan C. Doctor of Counsel), for Plaintiff-Appellant. Gibson, McAskill & Crosby, LLP, Buffalo (Jennifer L. Noah of Counsel), for Defendant-Respondent.

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 2 1/212 years elapsed between the date of the acts or omissions in question and the commencement of the action (see id.;  Schreiber v. Zimmer, 17 A.D.3d 342, 343, 793 N.Y.S.2d 104), 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 N.Y.2d 516, 519-520, 577 N.Y.S.2d 223, 583 N.E.2d 935, rearg. denied 79 N.Y.2d 978, 583 N.Y.S.2d 196, 592 N.E.2d 804;  Nailor v. Oberoi, 237 A.D.2d 898, 654 N.Y.S.2d 923).   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 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026;  DeMarco v. Santo, 43 A.D.3d 1285, 842 N.Y.S.2d 642;  Leifer v. Parikh, 292 A.D.2d 426, 427-428, 739 N.Y.S.2d 415).   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 N.Y.2d at 258-259, 573 N.Y.S.2d 434, 577 N.E.2d 1026;  DeMarco, 43 A.D.3d 1285, 842 N.Y.S.2d 642).

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

MEMORANDUM: