Opinion
2013-04-18
Joan LINKER, also known as Joni Linker–Hufnagel, Plaintiff–Respondent, v. Pasquale J. MALPESO, D.M.D., et al., Defendants–Appellants.
Murphy Higgins & Schiavetta PLLC, New Rochelle (Dan Schiavetta, Jr. of counsel), for appellants. Albert W. Chianese & Associates, P.C., Rockville Centre (Thomas P. Reilly of counsel), for respondent.
Murphy Higgins & Schiavetta PLLC, New Rochelle (Dan Schiavetta, Jr. of counsel), for appellants. Albert W. Chianese & Associates, P.C., Rockville Centre (Thomas P. Reilly of counsel), for respondent.
ANDRIAS, J.P., ACOSTA, FREEDMAN, RICHTER, GISCHE, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered November 27, 2012, which, in this action alleging dental malpractice, denied defendants' motion to dismiss the complaint as barred by the statute of limitations, unanimously affirmed, without costs.
Defendant Dr. Pasquale J. Malpeso demonstrated prima facie that he completed a full mouth restoration for plaintiff, which involved placement of 20 implants replacing teeth # 3–14 and # 19–30, on September 11, 2008, and that the instant action, commenced on September 14, 2011, more than 2 1/2 years later, is barred by the applicable statute of limitations (CPLR 214–a). However, the motion for summary judgment was properly denied. Plaintiff raised a triable issue of fact as to whether Dr. Malpeso provided continuous treatment after September 14, 2008, and through at least March 14, 2009 ( seeCPLR 214–a; Richardson v. Orentreich, 64 N.Y.2d 896, 899, 487 N.Y.S.2d 731, 477 N.E.2d 210 [1985];Santiago v. Filstein, 35 A.D.3d 184, 187–188, 826 N.Y.S.2d 216 [1st Dept. 2006] ). Defendants' records show that Dr. Malpeso placed plaintiff on a two-month follow-up schedule after he noted that the restoration was complete, and renewed that direction in May 2009. At subsequent appointments, he replaced a lost or broken new crown, and the office addressed hygiene and gum issues. Plaintiff testified that she continued to complain of chronic pain and of dissatisfaction with the cosmetic results of the restoration dozens of times between September 2008 and February 2010, and that the parties discussed ways to address her complaints. While defendants contend that all subsequent visits related to distinct or routine conditions, there are issues of fact as to whether those visits were part of a continuous course of treatment involving correction of conditions resulting from the alleged improperly performed restoration ( see Krzesniak v. New York Univ., 22 A.D.3d 378, 378–379, 802 N.Y.S.2d 447 [1st Dept. 2005] ), and whether they were “instigated by the patient to complain about and seek treatment for a matter relating to the initial treatment” ( Clayton v. Memorial Hosp. for Cancer & Allied Diseases, 58 A.D.3d 548, 549, 872 N.Y.S.2d 101 [1st Dept. 2009] ).