Opinion
No. 15–1189.
03-29-2016
AMERICAN EXPRESS CENTURION BANK, Plaintiff, v. Edward KREUTER a/k/a Edward J. Kreuter, Defendant. Edward J. Kreuter, Third Party Plaintiff, Michael Tischler and Tischler Dental, Third Party Defendants.
Aleksandr Altshular, Esq., Jaffe & Asher, LLP, New York, Counsel for Plaintiff. Edward J. Kreuter, Defendant, pro se, cross-movant. Paul L. Gruner, Esq., Kingston, Counsel for Third Party Defendants, movant.
Aleksandr Altshular, Esq., Jaffe & Asher, LLP, New York, Counsel for Plaintiff.
Edward J. Kreuter, Defendant, pro se, cross-movant.
Paul L. Gruner, Esq., Kingston, Counsel for Third Party Defendants, movant.
LISA M. FISHER, J.
Previously, Third Party Defendants Michael Tischler, DDS and Tischler Dental (hereinafter collectively “Tischler”) moved to dismiss the Complaint on the grounds of statute of limitations pursuant to CPLR §§ 213(2) and 214–a. Defendant/Third Party Plaintiff Edward J. Kreuter (hereinafter “Kreuter”) cross-moved for summary judgment pursuant to CPLR R. 3212 against Tischler. Plaintiff American Express Centurion Bank (hereinafter “Amex”) did not submit any papers relevant to the motions.
On December 18, 2015, Supreme Court (Mott, J.) granted Tischler's motion to dismiss inasmuch as the Complaint states a cause of action for dental malpractice, and all other relief was denied. Thus, Supreme Court found there was a timely breach of contract cause of action. Supreme Court also denied Kreuter's motion for summary judgment. Now, both Tischler and Kreuter move to reargue.
Tischler's Motion to Reargue
Tischler argues that Supreme Court erred in failing to dismiss the breach of contract cause of action. Specifically, Tischler claims that the last date of treatment for the dental work performed pursuant to the treatment plan by Kreuter was June 5, 2009. Since the statute of limitations pursuant to CPLR § 213(2) is six years, and the Summons and Complaint was filed on July 1, 2015, the action is time barred.
This argument is fails. Under CPLR § 213(2), a claim for a breach of contract is governed by a six-year statute of limitations period. As a general principle, the statute of limitations begins to run when a cause of action accrues (see CPLR § 203[a] ), that is, “when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court” (Aetna Life & Cas. Co. v. Nelson, 67 N.Y.2d 169 [1986] ; see Hahn Automotive Warehouse, Inc. v. American Zurich Ins. Co., 18 NY3d 765, 770 [2012] ). In contract actions, it is well-established that a claim generally accrues at the time of the breach. (See Hahn, 18 NY3d at 770 ; see also Ely–Cruikshank Co. v. Bank of Montreal, 81 N.Y.2d 399, 402 [1993].)
Here, Kreuter was treated for numerous teeth on June 5, 2009 as part of the treatment plan, including teeth # 6, 7, 21, and 28. While Tischler claims this ended the treatment, his treatment records demonstrate otherwise. Kreuter returned on June 15, 2009 complaining of poorly shaped crowns on teeth # 21 and 28 which was performed on June 5, 2009. On July 13, 2009, Kreuter again returned complaining of stains to his crowns, broken teeth on # 6 and 7, discontent with the “black metal showing along the gingival margin on a few of his teeth”; these were again all performed on June 5, 2009. There was also follow-up treatment for teeth # 6 and 7 on August 4, 2009.
While Tischler argues that the treatment plan was completed on June 5, 2009 and subsequently treatment was not related, his own clinical notes reveal Kreuter required follow-up treatment on the teeth Tischler treated pursuant to the treatment plan, to wit: teeth # 6 and 7. Notwithstanding Tischler's contention teeth # 6 and 7 were the result of “trauma,” of which trauma is not noted in Tischler's treatment notes, Kreuter presented himself to Tischler on July 13, 2009 complaining of other work performed on June 5, 2009. There was a back and forth between the parties via telephone, and by correspondence on November 3, 2009, Tischler terminated the physician-patient relationship.
Since the gravamen of Kreuter's third party Summons and Complaint is that Tischler failed to perform the services he charged Kreuter for (i.e., “ “[t]he implants and teeth were not designed and/or fabricated correctly and were not put in correctly”), and Tischler is not arguing that the Complaint does not state a cause of action (which is does), the date of the alleged breach is at the very earliest July 13, 2009 (the last treatment date for the non-“ “trauma” teeth). However, the Court is inclined to agree with Supreme Court (Mott, J.) that the date of the alleged breach was November 3, 2009 when Tischler dismissed Kreuter as a patient and thus gave Kreuter the expectation that Tischler would not fulfill or complete any further dental treatment and he would need to obtain relief from the court. (See Aetna, 67 N.Y.2d at 169 ; Hahn, 18 NY3d at 765.)
Therefore, Tischler's motion to reargue is denied.
Kreuter's Motion to Reargue
Kreuter's motion to reargue contests the branch of Tischler's motion to dismiss which dismissed the Complaint inasmuch as it asserted a cause of action for dental malpractice. Kreuter claims that he has “never plead[ ]” dental malpractice. He claims he is “well aware” of the statute of limitations for dental malpractice, which he acknowledges is two and a half (2½) years, “except if Equitable Estopple [sic] can be proved.”
Since Kreuter admits that this is not a dental malpractice action and only a breach of contract action, the Court finds it unripe to address equitable estoppel to some unpled theory that Kreuter is openly not seeking, as it would not change the rights or liabilities of the parties in this action.
For the purposes here, Kreuter does not contest the denial of his summary judgment motion, thus this is deemed automatically abandoned. The Court further notes that Kreuter's motion to reargue is in improper form, as it does not have a notice of motion and separate affidavit; both are annexed together and consecutively, and do not provide where Kreuter's sworn statement and county of oath are taken. The Court overlooks this defect.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Third Party Defendant Michael Tischler and Tischler Dental's motion to reargue is DENIED, and all other relief requested therein is denied in its entirety; and it is further
ORDERED that Defendant/Third Party Plaintiff Edward Kreuter's motion to reargue is DENIED, and all other relief requested therein is denied in its entirety; and it is further
ORDERED that a copy of this Decision and Order is required to be included with any Record on Appeal relating to the December 18, 2015 Decision and Order, pursuant to CPLR § 5517(b) and/or CPLR R. 5526.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.
IT IS SO ORDERED.