Opinion
250672003.
Decided March 14, 2005.
William T. Martin Esq., Brooklyn, NY, for Plaintiff.
Andrew D. Showers Esq., McMahon, Martine Gallagher, LLP, New York, NY, for Defendant.
Plaintiff sues for injuries from defendant's dental malpractice. Defendant moves for summary judgment dismissing the complaint on the ground that plaintiff commenced the action after the applicable statute of limitations expired. C.P.L.R. §§ 3211(a)(5), 3212(b).
In reply, defendant maintains that plaintiff could have discovered the evidence of the claim against defendant sooner. The court has considered plaintiff's sur-reply to the extent it responds to this additional support for defendant's defense, particularly since defendant also has replied to the sur-reply, which the court also has considered. Duerr v. 1435 Tenants Corp., 309 AD2d 607, 608 (1st Dep't 2003); Allstate Ins. Co. v. Raguzin, 12 AD3d 468, 469 (2nd Dep't 2004). Upon oral argument February 23, 2005, for the reasons explained below, the court grants defendant's motion and dismisses the action as barred by the statute of limitations. C.P.L.R. §§ 214-a, 3211(a)(5), 3212(b).
I. BACKGROUND
Defendant, a dentist, treated plaintiff from January 1984 through August 1999. Nonparty dentists provided dental care to plaintiff both before and after this period. Defendant's x-rays of plaintiff January 13, 1984, revealed a metallic object in plaintiff's mouth on the lower right side. Plaintiff concedes that a subsequent dentist discovered and surgically removed the metallic object March 5, 2001.
Plaintiff did not commence this action until October 8, 2003, claiming she did not discover the party responsible for leaving the foreign object in her mouth until September 2003. This action thus requires the court to determine whether delayed discovery of the tortfeasor may extend the time for commencing an action against him or permit other claims either later accruing or with longer limitations periods.
II. STATUTE OF LIMITATIONS
A dental malpractice action must be commenced within two years and six months of the act, omission, or failure constituting the malpractice or, where the action is based on a foreign object, within one year of discovering the object or facts reasonably leading to its discovery, whichever is earlier. C.P.L.R. § 214-a; LaBarbera v. New York Eye and Ear Infirmary, 91 NY2d 207, 210 (1998); Melendez v. City of New York, 249 AD2d 197, 198 (1st Dep't 1998). Plaintiff does not rebut the admissible evidence that the metallic object was already present when defendant first treated plaintiff January 13, 1984. Contrary to plaintiff's contention, the statute of limitations runs from discovery of the object or the facts leading to its discovery, not the facts establishing a cause of action against defendant.
While plaintiff maintains that defendant's involvement in the malpractice only came to light September 25, 2003, during disclosure in another action, plaintiff's own knowledge of the dentists who treated her previously placed her in the best position to investigate and determine the foreign object's origin. Plaintiff does not explain her failure to subpoena any records from defendant, from the dentist who took over defendant's practice after defendant retired, or from any of her prior dentists. C.P.L.R. § 3102(c). Nor does plaintiff show any attempt to depose defendant or other dentists to ascertain the whereabouts of relevant dental records. C.P.L.R. § 3111. Although plaintiff claims she did not receive responses to her requests for records or other information, she presents no evidence that she made any such requests. Given the undisputed evidence that plaintiff discovered the metallic object March 5, 2001, plaintiff did not timely commence this action within a year after that date under the foreign object discovery rule. C.P.L.R. § 214-a.
Plaintiff further claims that defendant's failure to inform her of the metallic object, as well as his failure to remove the object, constituted malpractice. Her complaint alleges only the latter claim. Plaintiff has neither cross-moved to amend her complaint, nor presented a proposed amended complaint incorporating the new claim, nor demonstrated its merit through admissible evidence. She presents no expert affidavit or certificate of merit supporting this claim. C.P.L.R. § 3012-a(1); Ancrum v. St. Barnabas Hosp., 301 AD2d 474, 475 (1st Dep't 2003); George v. St. John's Riverside Hosp., 162 AD2d 140, 141 (1st Dep't 1990). See DeLeon v. Sonin Genis, 303 AD2d 291, 292-93 (1st Dep't 2003); Smith v. Tyras, 265 AD2d 217 (1st Dep't 1999); Boothe v. Lawrence Hosp., 188 AD2d 435, 436 (1st Dep't 1992); Perez v. Lenox Hill Hosp., 159 AD2d 251 (1st Dep't 1990). Even assuming defendant's conduct constituted malpractice, however, since defendant last treated plaintiff in August 1999, the action commenced October 8, 2003, on this claim, as distinct from the malpractice based on leaving the object in plaintiff's mouth, also is time barred. C.P.L.R. § 214-a; Trebach v. Brown, 250 AD2d 449, 450 (1st Dep't 1998).
III. ESTOPPEL
If a physician or dentist conceals his malpractice, he is estopped from relying on a statute of limitations defense. Simcuski v. Saeli, 44 NY2d 442, 448 (1978); Harkin v. Culleton, 156 AD2d 19, 21 (1st Dep't 1990). Here, the lack of evidence that defendant's conduct constituted malpractice in the first instance similarly fails to sustain a claim that defendant concealed such malpractice. Moreover, insofar as defendant's nondisclosure is the basis for both the alleged malpractice and the conduct underlying the estoppel claim, estoppel does not apply. Kaufman v. Cohen, 307 AD2d 113, 122 (1st Dep't 2003).
Finally, even if the evidence established defendant's concealment of malpractice, the issue would be whether plaintiff commenced her malpractice action within a reasonable time after the concealment underlying the estoppel ceased. See Harkin v. Culleton, 156 AD2d at 23. The unexplained delay in commencing plaintiff's action for over two years after discovering the metallic object would render the action untimely even were the estoppel claim cognizable. Commerce Indus. Ins. Co. v. Imrex Co., 270 AD2d 147 (1st Dep't 2000).
III. FRAUD CLAIM
Plaintiff also suggests a potential fraud claim, again without a cross-motion, proposed pleading, or admissible supporting evidence. E.g., Pacheco v. Fifteen Twenty Seven Assocs., 275 AD2d 282, 284 (1st Dep't 2000); Spence v. Bear Stearns Co., 264 AD2d 601, 602 (1st Dep't 1999). An action based on fraud is timely if commenced within six years from the claimed fraud or two years from when it could have been discovered with reasonable diligence. C.P.L.R. § 213(8); Kaufman v. Cohen, 307 AD2d at 122. To support a fraud claim in a medical or dental malpractice context, plaintiff must show that defendant knew of his malpractice and plaintiff's resultant injury and intentionally made a false material misrepresentation to plaintiff that she relied on to her detriment. Simcuski v. Saeli, 44 NY2d 442, 451 (1978); Atton v. Bier, 12 AD3d 240, 241 (1st Dep't 2004). See Standish-Parkin v. Lorillard Tobacco Co., 12 AD3d 301, 303 (1st Dep't 2004). Fraud also may be based on defendant's concealment of material facts defendant had a duty to disclose. Id.
Plaintiff urges a potential fraud claim based on defendant's failure to (1) report his discovery of the metallic object in plaintiff's mouth and (2) turn over records that he had discovered the object. Even assuming defendant left the metallic object in plaintiff's mouth, plaintiff has not shown any fraud apart from malpractice. Failure by a physician or dentist to disclose his malpractice is insufficient alone to raise fraud independent of a medical or dental malpractice claim. Simcuski v. Saeli, 44 NY2d at 451; Atton v. Bier, 12 AD3d at 241; Kraemer v. City of New York, 157 AD2d 404, 411 (1st Dep't 1990); Harkin v. Culleton, 156 AD2d at 26.
In addition, to recover under a fraud theory, plaintiff must show different injuries from the fraud than from the malpractice. Rizk v. Cohen, 73 NY2d 98, 105 (1989); Atton v. Bier, 12 AD3d at 241; Otero v. Presbyterian Hosp. in City of NY, 240 AD2d 279, 280 (1st Dep't 1997); Kraemer v. City of New York, 157 AD2d at 411. The unrebutted evidence that defendant did not leave the metallic object in plaintiff's mouth leaves the failure to disclose as the only potential malpractice, which is identical to the alleged fraud. Plaintiff also must show that defendant's concealment diverted her from treating the condition resulting from the malpractice. Harkin v. Culleton, 156 AD2d at 25; Congero v. Sider, 255 AD2d 415, 416 (2nd Dep't 1998). Here, nothing indicates that plaintiff might have benefitted from removal of the metallic object before the procedure March 5, 2001, or that she needed any other treatment for the condition. She alleges no injury from not removing or otherwise treating the object sooner. Thus she fails to suggest any treatment she might have sought for this benign, asymptomatic condition from which she was diverted.
Even if the evidence did suggest grounds for a fraud claim, its untimeliness would preclude repleading to allege such a claim. Harkin v. Culleton, 156 AD2d at 25-26. See Schindler v. Issler Schrage, 262 AD2d 226, 227 (1st Dep't 1999). Whether the accrual date of January 13, 1984, or the fraud discovery date of March 5, 2001, is used, a fraud action commenced October 8, 2003, would have been untimely. C.P.L.R. § 213(8).
IV. CONCLUSION
However the facts alleged by plaintiff are viewed, they fail to support any potential claim that is not time barred. C.P.L.R. §§ 213(8), 214-a. Therefore the court grants defendant's motion for summary judgment and dismisses the action. C.P.L.R. §§ 3211(a)(5), 3212(b). This decision constitutes the court's order and judgment of dismissal. The court will mail copies to the parties' counsel.