ORDERED that this motion by defendants, pursuant to CPLR 3211, dismissing the complaint upon the ground that the claims are time barred, is denied; and it is further

ORDERED that a compliance conference is scheduled for March 6, 2007, at 9:30 a.m., in Part 33, at the courthouse located at 1 Court Street, Riverhead, New York; and it is further

ORDERED that pursuant to CPLR 3214(a), discovery shall proceed forthwith and future summary judgment motions shall be made only after completion of all depositions.

This dental malpractice action seeks damages arising from the claim that defendants negligently treated the plaintiff's teeth over the period of time from 1993 to and including 2002. Defendants claim that, as shown on the dental records, the last treatment by defendant Dr. Joseph Dumanski occurred on January 2, 2002. The complaint and bill of particulars reflect treatment from 1993 to 2002. The statute of limitations for a dental malpractice claim is "two years and six months of the acts, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition" (CPLR §214-a).

Here, since the action was commenced by the filing of the complaint on July 15, 2005, more that two and a half years from the last date of treatment, defendants established their prima facie entitlement to dismissal as a matter of law. However, plaintiff offered sufficient evidence establishing her claim pursuant to the "foreign object" exception of CPLR §214-a, that is, the discovery on July 21, 2004, as reflected in a series of radiographs, of broken dental files that were left behind during prior root canal procedures. Since the action was commenced within one year of the claimed discovery, a question of fact has been raised on this issue (see Cavaluzzi v Beyers, 306 AD2d 429, 761 NYS2d 290 [2d Dept 2003]; Polichetti v Cohen, 268 AD2d 417, 702 NYS2d 85 [2d Dept 2000]; LaSorsa v Oelbaum, 2 Misc 3d 376, 768 NYS2d 558 [Sup Ct Bronx County 2003]).

The Court has declined to consider the October 24, 2006 affirmation of Dr. James Larocca, since it was submitted for the first time in defendants' reply papers (see Agha v Alamo Rent A Car, __ AD3d __, __ NYS2d __ [2d Dept December 19, 2006]; Matter of Ball v New York State Dept. of Envt. Conservation, __ AD3d __, __ NYS2d __ [2d Dept December 19, 2006]; Hoyte v Epstein, 12 AD3d 487, 488, 784 NYS2d 613 [2d Dept 2004]). Moreover, since plaintiff set forth her "foreign object"claim in her bill of particulars, defendants could have addressed the issue in their moving papers.

In any event, defendants' reply papers only raise issues of credibility as to when, if ever, plaintiff was made aware of the existence of the broken file before July 21, 2004. Such issues, like proximate cause, are reserved for the trier of the facts. The parties shall proceed to complete discovery, with summary judgment motions reserved to the conclusion thereof.

Accordingly, the motion is denied. This constitutes the decision and order of the Court.

THOMAS F. WHELAN, J.S.C.