Bell v. Villano

247 A.D.2d 497, 669 N.Y.S.2d 335, 1998 N.Y. App. Div. LEXIS 1470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 1998
• Status: Published

Opinion

In an action to recover damages for dental malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Bellantoni, J.), dated August 27, 1996, which granted the separate motions of the defendants William Villano and Anthony M. Pascale for partial summary judgment dismissing all claims against them which pre-date April 19, 1991, on the ground that they are barred by the Statute of Limitations.

Ordered that the order is affirmed, with one bill of costs.

Partial summary judgment dismissing those claims which concerned treatment rendered beyond the two- and one-half-year period of limitations was properly granted to each of the defendants. The matter does not fall within the rule of the continuous treatment doctrine (see, CPLR 214-a; see also, Nykorchuck v Henriques, 78 NY2d 255, 259). Further, contrary to the plaintiffs claim, no triable issue of fact was raised as to the potential applicability of the continuous treatment doctrine.

We note that this appeal was not rendered academic by a subsequent order of the Supreme Court, Orange County, dated July 2, 1997. That order, which dismissed the plaintiffs claims pursuant to CPLR 3216 for failure to prosecute, applied only to the defendant William Villano, and concerned claims which fall within the two and one-half year limitations period. Moreover, that order is the subject of a pending appeal.

Miller, J. P., Sullivan, Pizzuto and Florio, JJ., concur.