Opinion
5376 Index 22361/14E
01-04-2018
Fran LEWIS, Plaintiff–Appellant, v. Kenneth H. TREITEL, DDS, et al., Defendants–Respondents.
The Mandel Law Firm, New York (William M. Boyle of counsel), for appellant. Amabile & Erman, P.C., Staten Island (Alexandra Formica of counsel), for respondents.
The Mandel Law Firm, New York (William M. Boyle of counsel), for appellant.
Amabile & Erman, P.C., Staten Island (Alexandra Formica of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Gische, Kahn, Singh, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 11, 2016, which granted defendants' motion pursuant to CPLR 3211(a)(5) to the extent of dismissing the complaint as time barred as it relates to treatment rendered by them prior to November 23, 2011, unanimously affirmed, without costs.
The record establishes that treatment prior to November 23, 2011, the period beyond the 2 1/2–year statute of limitations (see CPLR 214–a ), consisted of isolated and discrete dental procedures, not for the condition complained of, a cyst in plaintiff's jaw. Accordingly, the continuous treatment doctrine does not apply to the treatment of these teeth (see Galecki v. Omnicare Dental, 121 A.D.3d 594, 995 N.Y.S.2d 50 [1st Dept. 2014] ; Marrone v. Klein, 33 A.D.3d 546, 823 N.Y.S.2d 371 [1st Dept. 2006] ). That defendants may have negligently failed to diagnose the condition does not toll the statute, since the failure to establish a course of treatment is not, in and of itself, a course of treatment for the purposes of tolling the statute ( Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991], affd 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991] ; Trebach v. Brown, 250 A.D.2d 449, 673 N.Y.S.2d 110 [1st Dept. 1998] ). While the doctrine would apply if defendants had been treating plaintiff for the underlying symptoms of the cyst, albeit incorrectly, plaintiff failed to adduce evidence that defendants treated her for symptoms ultimately traced to her cyst (compare Chestnut v. Bobb–McKoy, 94 A.D.3d 659, 943 N.Y.S.2d 461 [1st Dept. 2012] ).
We have considered the parties' remaining contentions and find them unavailing.