Defendant moves to dismiss the complaint pursuant to CPLR Section 3211 for failure to state a cause of action. The motion is granted.

The complaint first asserts "facts common to all claims". Plaintiff asserts that "at various times" defendant rendered dental services to plaintiff, her mother and her sister, Shari. The complaint says that plaintiff's treatment was in 2003. She states that defendant commenced a personal relationship with Shari, which consisted of defendant providing prescriptions for controlled substances to Shari in exchange for sexual favors. Plaintiff claims that the scheme was expanded so that defendant provided Shari with such prescriptions not only in Shari's name, but in the names of plaintiff and other patients of defendant. Shari allegedly posed as plaintiff and as other patients in presenting those prescriptions to various pharmacies. Plaintiff did not learn of the scheme until around mid-2004.

Shari and her husband were involved in matrimonial litigation, including a battle over custody of their daughter. Defendant was served with a subpoena to produce plaintiff's dental records, but produced fabricated treatment records so that it would appear that "Plaintiff (sic) had treated Plaintiff and issued prescriptions in her name for addictive substances in connection with such treatment." (Complaint, ¶12) In October 2004 defendant allegedly testified falsely at a deposition in the matrimonial with respect to said records and his relationship with Shari. Plaintiff asserts she has sustained physical and emotional injuries as a result of defendant's conduct, which was malicious as well as negligent.

At oral argument plaintiff's counsel made clear that the first cause of action sounds in dental malpractice. Defendant however correctly urges that this cause of action is barred by the 2 and ½ year statute of limitations for dental malpractice actions. The complaint asserts that the treatment rendered to plaintiff by defendant was in 2003. This action was not commenced until September, 2006, more than 2 and ½ years after December 31, 2003. At one point during oral argument plaintiff's counsel asked for leave to replead the first cause of action. There is nothing to be gained by repleading. Plaintiff submitted an affidavit in opposition to this motion in which she asserts that the treatment record prepared by the defendant "contains false entries and is not representative of my treatment history with the (d)efendant." (Plaintiff's opposing affidavit, par 3) Even if permission were granted to replead, it would be counsel's responsibility, as an officer [*2]of the court, to state the actual dates of the claimed dental malpractice, not the allegedly false dates asserted by defendant in the purportedly fabricated records. Nor can plaintiff rely on those false dates, as she seeks to do in her affidavit. She must rely on her honest version of the true facts, that is, of the true dates. There can be no estoppel against the defendant on this issue because there is no claimed reliance by plaintiff in any respect whatever upon the false dates of treatment asserted by defendant. Only by reliance on those incorrect dates can plaintiff seek to rely, as she does in conclusory fashion only, on the doctrine of continuous treatment. However, it is well settled that once defendant establishes prima facie entitlement to dismissal, by reference to the time of treatment set forth in the complaint, and the date that the action was instituted, that the action is barred by the statute of limitations, the burden then shifts to plaintiff to establish that the statute of limitations is tolled because of continuous treatment. Plaintiff has not, and cannot (because the true dates of treatment are in 2003), establish that the continuous treatment doctrine applies. Since the first cause of action is barred by the statute of limitations, it is dismissed.

The second cause of action seeks to assert a cause of action for the negligent infliction of emotional distress, is inadequate and must be dismissed. As my esteemed colleague Justice Gische wrote in JR v DC, 12 Misc 3d 1173(A) (Supreme Ct., NYCo., 2006), the "elements fo an action for negligent infliction of emotional distress are a breach of a duty owed to plaintiff which exposes him or her to an unreasonable risk of bodily injury or death. Bovsun v Sanperi, 61 NY2d 219 (1984). While physical injury is not a necessary element of a cause of action to recover for negligent infliction of emotional distress, such a cause of action must generally be premised upon conduct that unreasonably endangers a plaintiff's physical safety or causes the plaintiff to fear for her own safety. Saava v Longo, 8 AD3d 551 (2nd Dept, 2004); Johnson v New York City Board of Education, 270 AD2d 310 (2nd Dept, 2000)." See also EB v Liberation Publications, 7 AD3d 566, 567 (2nd Dept, 2004). Plaintiff's counsel very honorably conceded at oral argument that defendant is correct, that plaintiff was not physically injured or put in fear of physical injury by the scheme, and further conceded that the second cause of action can not stand, and accordingly this cause of action is dismissed.

The third cause of action is inadequate to serve as the foundation for any claim by plaintiff against defendant arising out of the improper issuing of prescriptions for Shari's benefit or falsification of plaintiff's dental records, not only for the negligent infliction of emotion distress but for the grossly negligent infliction of such injuries. Again, plaintiff's counsel very honorably conceded at oral argument that defendant is correct and that this cause of action can not stand, so that this cause of action is also dismissed.

Plaintiff's opposing affidavit indicates that the District Attorney's office has secured an indictment against defendant, so that his claimed misdeeds will be brought before a criminal jury. Contrary to plaintiff's assertion, the court does not condone defendant's claimed conduct by granting this application. This decision is only a determination that plaintiff may not piggyback upon her sister's travails to secure a recovery on any of the three cause of action alleged in the complaint.

Accordingly, the complaint is dismissed with prejudice and the Clerk of the Court is directed to enter judgment accordingly.

Dated:February 21, 2007 [*3]

60 Centre Street

New York, NY

J.S.C.