| Lewis v Treitel |
| 2018 NY Slip Op 00080 [157 AD3d 452] |
| January 4, 2018 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, February 28, 2018 |
[*1]
Fran Lewis, Appellant, v Kenneth H. Treitel, DDS, et
al., Respondents. |
The Mandel Law Firm, New York (William M. Boyle of counsel), for appellant.
Amabile & Erman, P.C., Staten Island (Alexandra Formica of counsel), for
respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 11, 2016, which
granted defendants' motion pursuant to CPLR 3211 (a) (5) to the extent of dismissing the
complaint as time-barred as it relates to treatment rendered by them prior to November 23, 2011,
unanimously affirmed, without costs.
The record establishes that treatment prior to November 23, 2011, the period beyond the
21/2-year statute of limitations (see CPLR 214-a), consisted of isolated and
discrete dental procedures, not for the condition complained of, a cyst in plaintiff's jaw.
Accordingly, the continuous treatment doctrine does not apply to the treatment of these teeth (see Galecki v Omnicare Dental, 121
AD3d 594 [1st Dept 2014]; Marrone v Klein, 33 AD3d 546 [1st Dept 2006]). That defendants
may have negligently failed to diagnose the condition does not toll the statute, since the failure to
establish a course of treatment is not, in and of itself, a course of treatment for the purposes of
tolling the statute (Nykorchuck v Henriques,
78 NY2d 255, 259 [1991]; Trebach v Brown, 250 AD2d 449 [1st Dept 1998]). While the
doctrine would apply if defendants had been treating plaintiff for the underlying symptoms of the
cyst, albeit incorrectly, plaintiff failed to adduce evidence that defendants treated her for
symptoms ultimately traced to her cyst (compare Chestnut v Bobb-McKoy, 94 AD3d 659 [1st Dept
2012]).
We have considered the parties' remaining contentions and find them unavailing.
Concur—Renwick, J.P., Manzanet-Daniels, Gische, Kahn and Singh, JJ.