Opinion
January 27, 1992
Appeal from the Supreme Court, Queens County (Graci, J.).
Ordered that the appeal from the order dated November 1, 1989, is dismissed, as that order was superseded by the order dated April 30, 1990, made upon renewal; and it is further,
Ordered that the order dated April 30, 1990, is modified, on the law, by adding a provision thereto that, upon searching the record, the complaint is dismissed insofar as it is based on any allegations of malpractice occurring before June 1, 1985; as so modified the order dated April 30, 1990, is affirmed insofar as appealed from; and it is further,
Ordered that the order dated November 1, 1989, is modified accordingly; and it is further,
Ordered that the defendant is awarded one bill of costs.
On December 1, 1987, the plaintiffs commenced the instant action to recover damages for dental malpractice. The defendant asserted a defense based on the 2 1/2-year Statute of Limitations (see, CPLR 214-a). The plaintiffs later made a motion to strike that affirmative defense, invoking the "continuous treatment" doctrine.
The Supreme Court held that the "continuous treatment" doctrine had no application and, upon searching the record (see, Mojica v New York City Tr. Auth., 117 A.D.2d 722, 723-724), concluded that the plaintiffs' complaint, to the extent that it is based on dental malpractice which occurred more than 2 1/2 years prior the commencement of the suit, was time barred. It was evidently due to a miscalculation that, in its order dated November 1, 1989, the court dismissed the plaintiffs' complaint to the extent that it was based on allegations of malpractice committed prior to May 1, 1984, rather than to the extent that it was based on allegations of malpractice committed prior to June 1, 1985. This error in calculation was not remedied when, in the order made upon renewal, the court adhered to the original determination.
On appeal, the plaintiffs argue that their complaint should be reinstated in its entirety, and that the defendant's Statute of Limitations defense should be stricken. The plaintiffs have the burden of showing that the continuous treatment doctrine should apply (see, Massie v. Crawford, 78 N.Y.2d 516; Rizk v. Cohen, 73 N.Y.2d 98). They have failed to meet that burden.
The plaintiffs' theory is that the defendant failed to diagnose, or to treat, a periodontal condition suffered by the plaintiff Arlene Polizzano. However, accepting the plaintiffs' own allegations as true, the plaintiffs failed to prove the existence of "a course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck v Henriques, 78 N.Y.2d 255, 259; see also, Cizek v. Bassett Hosp., 176 A.D.2d 1035). There is no proof in the record to show that the defendant's examinations of the plaintiff Arlene Polizzano were anything other than routine dental checkups (see, Massie v Crawford, supra). Under these circumstances, the continuous treatment doctrine does not apply (see, Nykorchuck v. Henriques, supra; Massie v. Crawford, supra; Cizek v. Bassett Hosp., supra).
The Supreme Court thus properly rejected application of the continuous treatment doctrine. In order to grant appropriate relief, we further search the record and grant relief to the defendant in the manner stated (see, Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 N.Y.2d 106). Mangano, P.J., Bracken, Lawrence and Rosenblatt, JJ., concur.