Perez v Giorlando

[*1] Perez v Giorlando 2010 NY Slip Op 51144(U) [28 Misc 3d 1204(A)] Decided on June 15, 2010 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2010
Supreme Court, Richmond County

Jose Perez and MERCY PEREZ, Plaintiff(s),

against

Carl S. Giorlando, D.D.S., Defendant.



100232/2009

Judith N. McMahon, J.

This dental malpractice action was commenced by the filing of a Summons and Complaint on or about December 19, 2007, in the United States District Court, Eastern District of New York. Plaintiff thereafter filed a Summons with Notice in this Court on or about January 29, 2009. It was thereafter stipulated by all parties that the action would be deemed commenced in this Court on December 19, 2007, and on February 10, 2009, the action in United States District Court was dismissed without prejudice.

Presently, discovery is completed and the case is on trial calender. The defendants are now moving for summary judgment, pursuant to CPLR § 3211 (a)(5), on the ground that the statute of limitations for any treatment rendered to the plaintiffs before June 19, 2005, has expired, and further, for summary judgment on the remaining treatment, pursuant to CPLR § 3212, that subsequent to June 19, 2005, any and all treatment rendered by defendant did not deviate from accepted medical practice. Defendant also moves for severance of the plaintiff Jose Perez and plaintiff Mercy Perez's claims on the ground that they have separate and distinct claims of malpractice against the defendant.

Initially, the Court notes that severance is "a matter of judicial discretion" and at this late stage in the proceedings should not be granted where the defendants failed to show a single trial would result in substantial prejudice (Mothersil v. Town Sports Int'l, 24 AD3d 424, 424 [2d Dept., 2005][finding that the trial court providently exercised its discretion in denying defendants motion to sever where common questions fact/law and no substantial prejudice existed]). Here, the plaintiffs have common questions of fact and law which would not result in any substantial prejudice to the defendants and as such, the portion of defendant's motion requesting severance of the plaintiffs' claims is hereby denied.

The complaint filed by the plaintiffs alleges, on behalf of plaintiff Jose Perez (hereinafter "Mr. Perez") that defendant Dr. Carl S. Giorlando, D.D.S. failed to, inter alia, timely diagnose and properly treat peridontitis. Plaintiff, Mercy Perez (hereinafter "Mrs. Perez"), primarily alleges that defendant Dr. Giorlando failed to timely diagnose and adequately treat gingivitis. The plaintiffs began treating with Dr. Giorlando in or around January 1984. The alleged malpractice began on October 30, 2001, for Mr. Perez and July 8, 2000, for Mrs. Perez. The last day of treatment for both plaintiffs was May 15, 2006. During the years which defendant Dr. [*2]Giorlando treated the plaintiffs they both visited his office for a myriad of issues pertaining to dental health and hygiene.

With respect to the defendant's motion for summary judgment contending that treatment before June 19, 2005, is time barred, it is well settled that "[a] defendant who seeks dismissal of a complaint pursuant to CPLR § 3211 (a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired. The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies" (Texeria v. BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [2d Dept. 2007]). A dental malpractice claim generally accrues on the date of the wrongful act or omission, and a two and one-half year statute of limitations applies (CPLR § 214-a).

Here, the defendant has met his burden establishing that treatment before June 19, 2005, is time barred as it occurred over two and one half years prior to the commencement of the action on December 19, 2007 (CPLR § 214-a). The burden now shifts to the plaintiff to establish that the treatment falls into an exception and here, the plaintiff contends that the treatment falls into the continuous treatment doctrine'. "Under the continuous treatment doctrine, the two and one-half-year Statute of Limitations for a medical or dental malpractice action is tolled until after a plaintiff's last treatment when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'" (Grippi v. Jankunas, 230 AD2d 826, 826 [2d Dept., 1996]; Kaufmann v. Fulop, 47 AD3d 682, 684 [2d Dept., 2008][finding that "the plaintiff must establish that a course of treatment was established concerning the condition which gave rise to the action"]). "The purpose of the doctrine is to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure'" and further "[t]he doctrine rests on the premise that it is in the patient's best interest that an ongoing course of treatment be continued, rather than interrupted by a lawsuit, because the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so'" (Nykorchuck v. Henriques, 78 NY2d 255, 258 [1991]).

Here, in order for the continuous treatment doctrine to toll the statute of limitations the plaintiff must establish that the defendant Dr. Giorlando rendered an actual course of treatment during the applicable period for the same conditions or complaints underlying the plaintiffs' dental malpractice claims (Chambers v. Mirkinson, 68 AD3d 702, 705 [2d Dept., 2009]). The plaintiffs have failed to do so. The plaintiffs evidence only establishes that they had a patient-dentist relationship with the defendant Dr. Giorlando over a lengthy period but there is no evidence to establish that Dr. Giorlando undertook a course of treatment for Mr. Perez's alleged periodontitis and Mrs. Perez's alleged gingivitis beginning on October 30, 2001 and July 8, 2000, respectively. Clearly, the plaintiffs' saw defendant Dr. Giorlando over several years for general dental care, including routine exams, oral cancer screens, filing repairs and other treatments. There was no indication of any treatment for periodontitis for Mr. Perez or gingivitis for Mrs. Perez.

The plaintiffs have failed to rebut defendants prima facie showing that the treatment rendered to plaintiffs prior to June 19, 2005, falls into the continuous treatment exception to [*3]CPLR § 214-a (Chambers v. Mirkison, 68 AD3d 702, 704-706 [2d Dept., 2009][dismissing a portion of plaintiffs claims as time barred, as the plaintiff failed to rebut the defendants prima facie establishment that they did not engage in an actual course of treatment for the allegations in the compliant]; Smith v. Fields, 268 AD2d 579, 579-580 [2d Dept., 2000][reversing the lower court and granting defendants summary judgment claims as time barred where there is no evidence the defendant doctor undertook a course of treatment to treat her periodontal condition]; Grippi v. Jankunas, 23- AD2d 826, 826-827 [2d Dept., 1996][finding that a "mere continuing relations between physician and patient' nor the continuing nature of a diagnosis' is sufficient to satisfy the requirements of the [continuous treatment] doctrine"]). Therefore, all allegations by plaintiffs against defendant Dr. Giorlando for dental malpractice before June 19, 2005, are hereby dismissed as time barred.

Defendant's motion also requests summary judgment on plaintiffs' allegations of treatment after June 19, 2005, as defendant contends that he did not deviate from accepted medical standards and practices in the treatment he rendered to the plaintiffs. It is well settled that, in a medical malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).

The defendant Dr. Giorlando has established his prima facie entitlement to summary judgment by adducing expert opinion that he did not deviate from good and accepted medical practice in his treatment rendered to the plaintiffs Jose and Mercy Perez (Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Defendant's expert, Dr. Lesilie W. Seldin, D.D.S., opined that Dr. Giorlando did not deviate from accepted medical practice in the treatment rendered to both Jose and Mercy Perez.

In opposition, however, the plaintiffs have presented evidence sufficient to raise a triable issue of fact with respect to the treatment performed by defendant Dr. Giorlando after June 19, 2005 (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Plaintiff's expert opined that the defendant Dr. Giorlando deviated from good and accepted medical practice in the treatment he rendered to the plaintiffs. Specifically, plaintiff's expert contends that Dr. Giorlando failed to properly diagnose the plaintiff Jose Perez's periodontal disease and/or the extent of the tooth decay and restorative work required. With respect to Mrs. Perez the plaintiff's expert opines that Dr. Giorlando failed to diagnose gingivitis and extensive decay and broken restorations. Thus, the medical experts of the parties clearly differ on the alleged deviations by defendant Dr. Giorlando and, it is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution [*4](Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of Dr. Giorlando is inappropriate on the allegations of dental malpractice after June 19, 2005, only.

Accordingly, it is hereby

ORDERED that the portion of defendant's motion that requests severance of plaintiffs' claims is hereby denied, and it is further

ORDERED that the portion of defendant's motion that requests summary judgment, pursuant to CPLR § 214-a, as time barred, is hereby granted, and it is further

ORDERED that the plaintiffs' complaint is dismissed with respect to all allegations of dental malpractice prior to June 19, 2005, and it is hereby

ORDERED that the portion of defendant's motion that requests summary judgment, pursuant to CPLR § 3212, with respect to the treatment rendered after June 19, 2005, is hereby denied, and it is further

ORDERED that any and all additional requests for relief are hereby denied, and it is further

ORDERED that the case proceed to trial immediately and it is further

ORDERED that the Clerk enter Judgment accordingly.

Dated: June 15 2010E N T E R,

____________________________________Hon. Judith N. McMahon

Justice of the Supreme Court