Dellaripa v Dr. Paul J. Guerrino D.D.S., P.C.

[*1] Dellaripa v Dr. Paul J. Guerrino D.D.S., P.C. 2016 NY Slip Op 51663(U) Decided on November 17, 2016 City Court Of Mount Vernon, Westchester Co Seiden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 17, 2016
City Court of Mount Vernon, Westchester Co

Joseph Dellaripa, Plaintiff, -against

against

Dr. Paul J. Guerrino D.D.S., P.C., d/b/a GUERRINO DENTISTRY & ASSOCIATES & DR. ABID H. RIZVI, D.D.S., Defendants.



2089-15



Joseph Goubeaud Jr., Esq.

Attorney for Plaintiff

22 W. 1st Street, #502

Mt. Vernon, New York 10550

Joseph Dellaripa

Plaintiff

271 Claremont Avenue

Mount Vernon, New York 10552

Dr. Paul J. Guerrino, DDS, PC

d/b/a Guerrino Dentistry & Associates

400 East Sanford Blvd.

Mt. Vernon, New York 10550

John D. Katz, Esq.

Attorneys for Defendant

135 West 28th Street, Suite 801

New York, New York 10001
Adam Seiden, J.

Plaintiff commenced this small claims action seeking $5,000 for dental malpractice. On November 13, 2015, all parties appeared and entered into a stipulation on record. The matter was settled for $750.00, with each defendant agreeing to pay $375.00 once releases were signed.

Defendant Rizvi now moves to restore the matter to the calendar and for summary judgment dismissing all claims. Plaintiff has filed no papers in opposition to the motion.

In support of the motion to restore, defendant's counsel argues that plaintiff's counsel has [*2]failed to provide the settlement documentation, including 1) a Hold Harmless Agreement, 2) a General Release, and 3) a Stipulation of Discontinuance. Defendant claims he has repeatedly reached out to the plaintiff's counsel, Mr. Goubeaud to settle the matter and that he has been unresponsive. Defendant maintains he cannot release the settlement money without signing the appropriate paperwork.

Defendant now moves to dismiss the action, claiming that the matter was not commenced within the statute of limitations for dental malpractice claims. Pursuant to CPLR § 214-a, an action for medical or dental malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment. Defendant argues that the treatment was rendered to plaintiff on November 4, 2011, however, he did not commence this action until July 29, 2015, some three years and eight months after the alleged incident. Accordingly, defendant argues that this action should have been barred outside the statute of limitations.

Defendant's motion to dismiss is denied. By entering into the stipulation of settlement in open court, defendants waived their defenses, including the statute of limitations defense (Hallock v Power Authority of State of NY, 64 NY2d 224 (1984); see also Rapp v Briarcliff Contemporaries Inc, 190 AD2d 785 (2d Dept 1993); Option One Mortgage Corp. v Daddi, 60 AD3d 920 (2d Dept 2009)).

The plaintiff's motion to restore this matter to the calendar is granted without opposition. The parties shall appear on December 8, 2016 at 2:00 p.m. for control purposes.

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion to dated May 25, 2016; Affirmation in Support. Exh. A-K.

Dated: November 17, 2016

Mount Vernon, New York

_________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon