Gaber v Benhuri Ctr. for Laser Dentistry 2013 NY Slip Op 30378(U) February 15, 2013 Supreme Court, New York County Docket Number: /11 Judge:

Transcription

1 Gaber v Benhur Ctr. for Laser Dentstry 203 NY Slp Op 30378(U) February 5, 203 Supreme Court, New York County Docket Number: 80064/ Judge: Joan B. Lobs Republshed from New York State Unfed Court System's E-Courts Servce. Search E-Courts ( for any addtonal nformaton on ths case. Ths opnon s uncorrected and not selected for offcal publcaton.

2 [* ] NNEDON22203 SUPREME COURT OF THE Sf TE OF EW YORK - NEW YORK COUNTY PART 6 PRESENT: LUWS Justce MOTON sm. NO. 0 The followng papers, numbered to 0 were read on ths moton to/@.4dy\w lu ; ~ Notce of Motlonl Order to Show_ Caue - Affdavts - Exhbts... Answerng Affdavts - Exhbts Replyng Affdavts Cross-Moton: 0 Yes PNo Upon the foregong papers, t s ordered that ths moton c MBE FEB NEW YORK COUNTY CLERK'S OFFCC": Dated: :heck one: 0 FNAL NON-FNAL DSPOSTON Check f approprate: DO NOT POST c] REFERENCE SUBMT ORDER/ JUDG. E SETTLE ORDER/ JUDG.

3 [* 2] - [ -aganst- THE BENHUR CENTER FOR LASER DENTSTRY and MARK BENHUR, DDS, JOAN B. LOBS, J.S.C.: Decson and Orde r Ths dental malpractce case arses out of a treatment plan that the Defendants, the FLED ' -_ Benhur Center for Laser Dentstry and Mark Benhur, D.D.S., provded for the Plantff, Mchael Gaber. The Defendants move for summary judgment pursuant to Rule 322 of the Cvl Practce Law and Rules, clamng that Plantffs cause of acton s barred by the statute of lmtatons. Defendants! clam that Plantffs vst to Dr. Benhur n September 2009 was not part of a contnuous course of treatment under C.P.L.R a to toll the runnng of the statute of lmtatons for Defendants' treatment of Plantff n Aprl 2008 and earler, whch treatment occuned pror to two and half years before the flng of ths acton n May 20. For the followng reasons that moton s dened, Dr. Benhur created a dental treatment plan for the plantff, Mchael Gaber, n June 2005, whch was mplemented over several years. Treatment ncluded extractons, mplants, brdges, and crowns, among others. Mr. Gaber, who s a Ukranan-born U.S. ctzen, s presdent of a Russan manufacturng company. He travels to Russa approxmately four tmes a year and spends approxmately sx months of each year n Russa. When needed he has sought dental treatment n Russa but consders Dr. Benhur,to have been hs dentst durng the events of ths case. The last treatment actvty to whch bath sdes agree occurred was n Aprl At that tme Dr. Benhw

4 [* 3] r permanently cemented a brdge at stes 2-4. At hs deposton, Mr. Gaber testfed that he had prevously seen a dentst n Russa for complants wth hs mplant and upper left sde brdge as provded by Dr. Benhur. Plantff clams that he spoke wth Dr. Benhur and the doctor told hm he would send a mssng screw to the Russan dentst, but he dd not, Mr. Gaber testfed n hs deposton that Dr. Benhur suggested that the Russan dentst cut the brdge and cement t to an earler tooth, n treatng Mr. Gaber n Aprl 2008, followng Gaber s return from Russa, Dr, Benhd asked Mr. Gaber to pay the laboratory costs for creatng a new brdge at stes 2-4, but Mr. Gaber refused, / Approxmately 7 months later, on September 6,2009, Mr. Gaber returned to Dr. Benhur. Mr. Gaber reported that he had lost one of hs mplants three months earler. Mr. Gaber, who at that tme resded n Florda, presented a treatment plan to Dr. Benhur from a dentst n Florda that proposed redong all of Dr. Benhur s work. Dr. Benhur dsagreed. Dr. Benhur cleaned Mr. Gaber s teeth and offered to place an mplant around tooth 3 and a new brdge or snus lft and charge hm laboratory fees only. He took fve x-rays. The statute of lmtatons for an acton far dental malpractce provdes n pertnent part that the acton s to be commenced wthn two years and sx months of the.., last treatment where there s contnuous treatment for the same llness, njury or condton whch gave rse to the sad act, omsson or falure. C.P.L.R a. The statute further defnes contnuous treatment as excludng examnatons undertaken at the request of the patent for the sole purpose of ascertanng the state of the patent s candton. Underlyng the doctrne s the polcy that the best nterests of a patent warrant contnued treatment wth an exstng provder, rather than stoppng treatment, -2-

5 [* 4] snce the provder s best postoned to dentfy and correct any malpractce. l&, Rudolp h v. Lvnn, P.C,, 6 A.D.3d 26, 42 (st Dep t 2005). Treatment need not actually be performed provded t was tmely sought. &, Stahl v. Smud, 20 A.D.2d 770,77 (3rd Dep t 994) (ctng McDermott v. T a, 56 N.Y.2d 399,406 (982)). Gaps n treatment do not necessarly preclude applcaton of the doctrne where further treatment was contemplated. RudolFh, 6 A.D.3d at 4 3 (upholdng 22 month gap n treatment). Defendants argue that they completed treatng the Plantff on Aprl 8,2008, and that the vst n September 2009 was merely an examnaton to ascertan the state of Mr. Gaber s condton, whch conduct s expressly excluded from the defnton of contnuous treatment under Secton 24-a. Based on the May 2,20, commencement of ths sut, Defendants contend any challenge to treatment that occurred before November 2, 2008, s untmely. Plantff opposes summary judgment, clarnn2genune ssues of materal fact reman whether the September 2009 vst was part of Dr, Benhur s contnuous treatment. Plantff contends that the vst arose from Dr, Benhur s treatment plan and the gap between vsts was consstent wth earler gaps due to Plantffs travel for work. Where there s conflctng evdence regardng the purpose of a dentst s vst, the ssue s a queston of fact for the jury s resoluton. &, Pansbv v. Trumaato~, 298 A.D,2d 265 (st Dep t 2002); &XJ PJ 2: 49. Defendants clam that the September 2009 vst was merely for a routne cleanng or neutral assessment s not borne out by ther own factual records. Ther papers, whch nclude Dr. Benhur s medcal records and deposton testmony relate that at the September 2009 vst Plantff also requested repar to brdge work prevously performed by Dr. Benhur. Dr. Benhur -3-

6 [* 5] took fve x-rays at that vst. He proposed placng an mplant around ste 3 as well as a new brdge or snus lft. And he offered to perform those servces for laboratory costs only. ndeed n ther reply Defendants appear to abandon ther earler clam that no further treatment was contemplated after the Aprl 2008 vst as grounds to preclude the contnuous treatment doctrne n ths case, but rather they aver there was no treatment beyond a cleanng at the September 2009 vst. These dspartes between Defendants characterzatons of the vst as at most an examnaton to ascertan Mr. Gaber s condton and the evdence cted present a jury queston precludng sumrnaryjudgrnent. Accordngly, t s ORDERED tht the moton s dened; and t s further t ORDERED that the partes shall appear for a pre-tral conference on Tuesday, March 5,203, at 9:30 a.m., to pck a tral date. Dated: February 5,203 ENTER: FLED FEB JOAN B. ~OBS, J.S.C. l Ths Court separately notes that Defendants moton for summary judgment seekng to dsmss Plantffs cause of acton as barred by the statute of lmtatons was tself fled more than a week outsde the tme lmts set by ths Court n ts Part Rules for makng motons for summary judgment