Opinion
March 28, 1977
Order, Supreme Court, New York County, entered on December 7, 1976, denying defendant's motion under CPLR 3211 (subd [a], par 5) to dismiss the complaint on the ground of the Statute of Limitations, is unanimously affirmed, without prejudice. Plaintiff-respondent shall recover of defendant-appellant $60 costs and disbursements of this appeal. The complaint alleges dental malpractice involving the leaving of a foreign object in plaintiff, not discovered until a time within the statutory period. The factual basis for defendant's motion rests entirely on an affirmation of an attorney who has neither personal knowledge of the facts, nor acceptable dental expertise. Such an affirmation is insufficient to present a factual record for judicial action in this case.
Concur — Kupferman, J.P., Lupiano, Silverman, Lane and Markewich, JJ.