Nailor v. Oberoi

Appellate Division of the Supreme Court of New York

Nailor v. Oberoi

237 A.D.2d 898, 654 N.Y.S.2d 923, 1997 N.Y. App. Div. LEXIS 3487

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 14, 1997

StatusPublished

Cited by8 cases

This text of 237 A.D.2d 898 (Nailor v. Oberoi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nailor v. Oberoi, 237 A.D.2d 898, 654 N.Y.S.2d 923, 1997 N.Y. App. Div. LEXIS 3487 (N.Y. Ct. App. 1997).

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Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action is barred by the Statute of Limitations applicable to dental malpractice actions (CPLR 214-a). The complaint, amplified by the verified bill of particulars, asserts claims of dental malpractice arising from the endodontic procedures performed by defendant on plaintiff’s six upper front teeth. Defendant’s submissions establish that more than 21h years elapsed between the date of the alleged malpractice and the commencement of the action. The burden therefore shifted to plaintiff to establish the applicability of the continuous treatment doctrine, which tolls the Statute of Limitations until the end of the course of treatment (see, Massie v Crawford, 78 NY2d 516, 519, rearg denied 79 NY2d 978). Plaintiff failed to meet that burden. She established only that there was an ongoing dentist-patient relationship and that she had received other routine dental care and various treatments involving other teeth (see, Johansen v Ozer, 223 AD2d 412; Kasten v Blaustein, 214 AD2d 539; Merriman v Sherwood, 204 AD2d 998, 999; see also, Washington v Elahi, 192 AD2d 704). (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Summary Judgment.) Present—Denman, P. J., Pine, Law-ton, Doerr and Balio, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action is barred by the Statute of Limitations applicable to dental malpractice actions (CPLR 214-a). The complaint, amplified by the verified bill of particulars, asserts claims of dental malpractice arising from the endodontic procedures performed by defendant on plaintiff’s six upper front teeth. Defendant’s submissions establish that more than 21h years elapsed between the date of the alleged malpractice and the commencement of the action. The burden therefore shifted to plaintiff to establish the applicability of the continuous treatment doctrine, which tolls the Statute of Limitations until the end of the course of treatment (see, Massie v Crawford, 78 NY2d 516, 519, rearg denied 79 NY2d 978). Plaintiff failed to meet that burden. She established only that there was an ongoing dentist-patient relationship and that she had received other routine dental care and various treatments involving other teeth (see, Johansen v Ozer, 223 AD2d 412; Kasten v Blaustein, 214 AD2d 539; Merriman v Sherwood, 204 AD2d 998, 999; see also, Washington v Elahi, 192 AD2d 704). (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J.—Summary Judgment.) Present—Denman, P. J., Pine, Law-ton, Doerr and Balio, JJ.

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Bluebook (online)

237 A.D.2d 898, 654 N.Y.S.2d 923, 1997 N.Y. App. Div. LEXIS 3487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nailor-v-oberoi-nyappdiv-1997.

Opinion

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