Opinion
May 15, 1989
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the order is reversed, on the law, with costs, the motion to strike is denied, and the cross motion for partial summary judgment is granted.
Contrary to the plaintiff's contentions, the dental services provided by the defendant, over a period of approximately 18 years, did not constitute continuous treatment for purposes of tolling the Statute of Limitations until the date of their last consultation (see, Wehle v Giovanniello, 137 A.D.2d 680; Ciciless v Lane, 129 A.D.2d 759; Landau v Salzman, 129 A.D.2d 774). Nor has the plaintiff set forth a sufficient foundation to support the invocation of the doctrine of equitable estoppel so as to preclude the defendant from asserting a Statute of Limitations defense (see, Simcuski v Saeli, 44 N.Y.2d 442; Bikowicz v Nedco Pharmacy, 114 A.D.2d 708; Renda v Frazer, 75 A.D.2d 490; see also, Rizk v Cohen, 73 N.Y.2d 98). Accordingly, the defendant is entitled to partial summary judgment dismissing, as time barred, all claims predicated upon alleged acts of dental malpractice which occurred prior to May 4, 1984 (see, CPLR 214-a).
We further note that no decision was made with respect to that branch of the defendant's cross motion which sought attorney's fees and related expenses. Accordingly, the matter technically remains pending and undecided (see, Katz v Katz, 68 A.D.2d 536, 543). It has, however, "long been the universal rule in this country [with few exceptions not applicable here] not to allow a litigant to recover damages for the amounts expended in the successful prosecution or defense of its rights" (Mighty Midgets v Centennial Ins. Co., 47 N.Y.2d 12, 21-22). Thus, an award of such fees to the defendant is inappropriate. Mangano, J.P., Brown, Eiber and Sullivan, JJ., concur.