Alvarado v Esposito

[*1] Alvarado v Esposito 2015 NY Slip Op 51798(U) Decided on December 8, 2015 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2014-1301 Q C

Nelson Alvarado, Appellant,

against

Massimo M. Esposito, D.D.S., Ambulatory Oral Surgery & Anesthesia and Putnam Family Dentistry, Respondents.

Appeals from orders of the Civil Court of the City of New York, Queens County (Ulysses B. Leverett, J.), entered March 13, 2014 and March 26, 2014, respectively. The order entered March 13, 2014 granted a motion by defendant Ambulatory Oral Surgery & Anesthesia for summary judgment dismissing the complaint insofar as asserted against it. The order entered March 26, 2014, insofar as appealed from as limited by the brief, granted a motion by defendants Massimo M. Esposito, D.D.S. and Putnam Family Dentistry to dismiss plaintiff's malpractice cause of action insofar as asserted against them, and, on the court's own motion, dismissed plaintiff's cause of action for assault and battery insofar as asserted against them.

ORDERED that the order entered March 13, 2014 is affirmed, without costs; and it is further,

ORDERED that so much of the appeal as is from the portion of the order entered March 26, 2014 as, on the court's own motion, dismissed plaintiff's cause of action for assault and battery insofar as asserted against defendants Massimo M. Esposito, D.D.S. and Putnam Family Dentistry is dismissed; and it is further,

ORDERED that the order entered March 26, 2014, insofar as appealed from and insofar as reviewed, is affirmed, without costs.

In November 2013, plaintiff pro se, by summons and endorsed complaint, commenced this action against defendants Massimo M. Esposito, D.D.S. (Dr. Esposito), Ambulatory Oral Surgery & Anesthesia (Ambulatory), and Putnam Family Dentistry (Putnam), alleging: "Damage caused to person; Failure to provide repairs; Medical Malpractice; Assault & Battery; Pain & Suffering; Medical Fraud; [and] Failure to provide proper services." Dr. Esposito and Putnam subsequently moved to dismiss plaintiff's malpractice cause of action insofar as asserted against them, pursuant to CPLR 3211 (a) (5), on statute of limitations grounds.[FN1] In support of [*2]their motion, they submitted plaintiff's treatment record, which showed that plaintiff's treatment for the fitting of new dentures had commenced on June 30, 2010 and that the last date of treatment was November 5, 2010, when the dentures had been inserted. Although additional appointments had been scheduled for December 7, 2010, March 9, 2011 and April 4, 2011, the appointments on those dates were not kept. Since 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 continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure" (CPLR 214-a), Dr. Esposito and Putnam contended that plaintiff's malpractice cause of action against them is time-barred. Although plaintiff claimed that the continuous treatment doctrine applied, the Civil Court rejected plaintiff's contention and, by order entered March 26, 2014, dismissed, on statute of limitations grounds, the malpractice cause of action insofar as asserted against defendants Dr. Esposito and Putnam. The Civil Court also, on its own motion, dismissed the assault and battery cause of action insofar as asserted against these defendants, as it was barred by the one-year statute of limitations (see CPLR 215).

Ambulatory separately moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that it had not rendered any care or treatment to plaintiff. As plaintiff did not make any showing to the contrary, the Civil Court, by order entered March 13, 2014, granted Ambulatory's motion.

On appeal, plaintiff contends that the continuous treatment doctrine applies to his malpractice cause of action and submits a document which, aside from being dehors the record, is of no relevance to this action. In any event, we note that while the "continuing trust and confidence" underlying the continuous treatment doctrine does not necessarily come to an end upon a patient's last personal visit, the patient must show that "further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past" (Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]). Even if Dr. Esposito had expected plaintiff to return after the November 5, 2010 visit, plaintiff did not meet his burden of providing facts to show that he had intended to continue treatment with Dr. Esposito after that date. Moreover, even were we to consider plaintiff's treatment to have continued until April 4, 2011, the date of plaintiff's last missed appointment, plaintiff's malpractice cause of action would still be time-barred. Consequently, contrary to plaintiff's contention, his malpractice cause of action was not tolled by the continuous treatment doctrine, and was barred by the statute of limitations (see CPLR 214-a). We find unavailing plaintiff's argument that his malpractice cause of action was governed by the three-year statute of limitations of CPLR 214. Plaintiff's claim that Dr. Esposito failed to provide him with properly fitting dentures involves conduct dealing with "a matter of medical science or art requiring special skills not ordinarily possessed by lay persons" (Glasgow v Chou, 33 AD3d 959, 961 [2006]), which sounds in malpractice rather than in ordinary negligence.

So much of the appeal as is from the portion of the order entered March 26, 2014 as, on the court's own motion, dismissed plaintiff's cause of action for assault and battery insofar as asserted against defendants Esposito and Putnam is dismissed on the ground that no appeal as of right lies from a sua sponte order (see CCA 1702 [a] [2]).

As to Ambulatory, the fact that it may have shared a common address and telephone number with the codefendants is of no import in this case, and does not demonstrate that there was any liability on Ambulatory's part. Consequently, we leave undisturbed the Civil Court's order entered March 13, 2014.

Plaintiff's remaining arguments concern matters which are either dehors the record or without merit.

Accordingly, the order entered March 26, 2014, insofar as appealed from and insofar as reviewed, and the order entered March 13, 2014 are affirmed.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: December 08, 2015

Footnotes

Footnote 1: Although their motion was denominated as one to dismiss the complaint pursuant to CPLR 3211 (a) (5), as it was made after service of the answer which included the affirmative defense of statute of limitations, it was actually a motion for summary judgment, pursuant to CPLR 3212 (see Impastato v De Girolamo, 95 AD2d 845 [1983]).