Polichetti v. Cohen

Appellate Division of the Supreme Court of New York

Polichetti v. Cohen

268 A.D.2d 417, 702 N.Y.S.2d 85, 2000 N.Y. App. Div. LEXIS 225

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

DecidedJanuary 10, 2000

StatusPublished

Cited by2 cases

This text of 268 A.D.2d 417 (Polichetti v. Cohen) 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

Polichetti v. Cohen, 268 A.D.2d 417, 702 N.Y.S.2d 85, 2000 N.Y. App. Div. LEXIS 225 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated December 2, 1998, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made out a prima facie case for summary judgment. In opposition, the plaintiff established the existence of triable issues of fact. The plaintiff submitted a dentist’s affidavit of merit stating that the defendant’s failure to advise the plaintiff of the potential risks involved in the dental procedure, or to notify him that a dental file had broken off inside his tooth, was a departure from accepted practice which proximately caused his injury (see, De Stefano v Immerman, 188 AD2d 448; Amsler v Verrilli, 119 AD2d 786).

The broken dental file which was left inside of the plaintiff’s tooth is a “foreign object” within the meaning of CPLR 214-a, which delayed the running of the Statute of Limitations until the date the foreign object was or reasonably should have been discovered (see, Rockefeller v Moront, 81 NY2d 560; Carmona v Lutheran Med. Ctr., 238 AD2d 535).

The defendant’s remaining contention was not raised before the Supreme Court and is therefore not properly before this Court (see, Gross v Aetna Cas. & Sur. Co., 240 AD2d 468). Thompson, J. P., Krausman, H. Miller and Schmidt, JJ., concur.

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—In an action to recover damages for dental malpractice, the defendant appeals from an order of the Supreme Court, Orange County (Owen, J.), dated December 2, 1998, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The defendant made out a prima facie case for summary judgment. In opposition, the plaintiff established the existence of triable issues of fact. The plaintiff submitted a dentist’s affidavit of merit stating that the defendant’s failure to advise the plaintiff of the potential risks involved in the dental procedure, or to notify him that a dental file had broken off inside his tooth, was a departure from accepted practice which proximately caused his injury (see, De Stefano v Immerman, 188 AD2d 448; Amsler v Verrilli, 119 AD2d 786).

The broken dental file which was left inside of the plaintiff’s tooth is a “foreign object” within the meaning of CPLR 214-a, which delayed the running of the Statute of Limitations until the date the foreign object was or reasonably should have been discovered (see, Rockefeller v Moront, 81 NY2d 560; Carmona v Lutheran Med. Ctr., 238 AD2d 535).

The defendant’s remaining contention was not raised before the Supreme Court and is therefore not properly before this Court (see, Gross v Aetna Cas. & Sur. Co., 240 AD2d 468). Thompson, J. P., Krausman, H. Miller and Schmidt, JJ., concur.

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Bluebook (online)

268 A.D.2d 417, 702 N.Y.S.2d 85, 2000 N.Y. App. Div. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polichetti-v-cohen-nyappdiv-2000.

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