Vaughn v Como
Annotate this CaseDecided on July 9, 2009
Mount Vernon City Ct
Marie Mimuse Vaughn, Plaintiff,
against
John F. Como, DDS PC, Defendant.
0808-09
Veronica I. Banton, Esq.
Attorney for Plaintiff
6 Gramatan Avenue
Mt. Vernon, New York 10550
John G. Molloy, Esq.
Attorney for Defendant
305 Old Tarrytown Road
White Plains, New York 10603
Adam Seiden, J.
Plaintiff commenced this small claims action on February 9, 2009 seeking to recover $5,000.00 (five thousand dollars) alleging defendant's failure to provide proper dental services.
A trial was held on April 15, 2009, where the credible testimony and evidence established that plaintiff's patient-dentist relationship with the defendant began in 2005. In April 2005, plaintiff visited the defendant's office, wherein defendant conducted an oral examination of the plaintiff's mouth. Plaintiff told defendant that she wanted to have her teeth fixed and inquired about implants and dentures. Plaintiff opted to have upper and lower partial dentures. Defendant took measurements and made impressions of plaintiff's mouth; plaintiff paid a total of $4500.00 for the dentures.
On May 19, 2005 defendant delivered the upper and lower partial implants to plaintiff. At the initial fitting, defendant told plaintiff that she would get used to the feel of the dentures after wearing them for a while. On June 9, 2005, plaintiff returned to defendant's office for a denture adjustment after complaining that the dentures did not fit properly. Defendant marked where the lower dentures were hurting plaintiff and advised her that the upper dentures were a perfect fit and could not be adjusted.
On June 23, 2007, plaintiff returned to the defendant's office. According to the plaintiff's examination record submitted by the defendant, plaintiff advised the defendant that she had stopped wearing her upper dentures for a period of time and that when she attempted to put it back in it would not stay. She further advised that she had been carrying the dentures around in her pant pocket and felt it bend and since then, has not been wearing the upper denture. An examination of the denture revealed that the framework bent. The defendant attempted to realign the denture, but it proved to be beyond repair. Defendant advised plaintiff that she would need a new upper denture. Plaintiff told the defendant that she would let him know at a later date if she planned to replace the denture.
Plaintiff did not return to the defendant's office after June 2007. In September [*2]2007, plaintiff sought the services of a new dentist, Dr. Ariel Stein of Mount Vernon. Dr. Stein prepared a new denture for plaintiff. Plaintiff presented a receipt from Dr. Stein's office and advised that she paid $2,500.00 for the new denture.
Under CPLR § 214-a, an action for dental malpractice "must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is a continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." The term " continuous treatment' shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient's condition" (CPLR § 214-a).
The continuous treatment doctrine is inapplicable where there is no timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment or otherwise (Curcio v Ippolito, 63 NY2d 967 (1984)). Here, the defendant dentist delivered dentures to plaintiff in May 2005. Plaintiff returned to defendant's office on June 9, 2005, some three weeks later for a re-adjustment. Plaintiff did not return to defendant's office again until June 23, 2007, over two years after initially complaining about the fit of her dentures. Plaintiff commenced this action on February 9, 2009.
After reviewing the evidence and testimony presented, the Court finds that plaintiff has failed to sustain her burden of establishing the continuous nature of the later visit. Here, the last day of continuous treatment for the fit of the dentures was June 9, 2005. The Court further finds that the June 23, 2007 date, wherein the plaintiff advised the defendant that the dentures "bent in her pocket" and where the defendant examined the dentures and attempted to realign, to no avail, merely constituted a dental examination, unrelated to the 2005 visits; mere dental examinations do not fall within the purview of the continuous treatment doctrine (see Schreiber v Zimmer, 17 AD3d 342 (2d Dept 2005); Landau v Salzman, 129 AD2d 774 (2d Dept 1987); Ciciless et al. v Lane et al., 129 AD2d 759 (2d Dept 1987)).
Accordingly, those acts of dental malpractice alleged to have been committed more than three years prior to the commencement of this action must be dismissed as time barred.
Plaintiff's claim is dismissed.
This constitutes the Decision and Order of this Court.
Dated: Mount Vernon, New York
July 9, 2009
_____________________________________
HON. ADAM SEIDEN
Associate City Judge of Mount Vernon
[*3]To:
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