96 Misc. 585 | N.Y. Sup. Ct. | 1916
Plaintiff seeks to recover damages for defendant’s alleged unskillfulness or improper performance of services as a dentist in treating plaintiff. Defendant pleads the Statute of Limitations which he avers “ requires that an action to recover damages for malpractice must be commenced within two years after the cause of action has accrued, and that this action was not begun within two years from the date when the cause of action is alleged to have accrued.” To this defense plaintiff demurs for insufficiency. Plaintiff urges that his action is for breach of contract, and that the six-year limitation and not the two-year limitation relating to an action for damages for malpractice applies. 'While the complaint sets forth the contractual relation by words indicating that the plaintiff and defendant contracted to have certain dental work performed “ in plaintiff’s mouth,” yet it is plain enough from a reading of the entire complaint that the gravamen thereof is the defendant’s unskillfulness or improper performance of the work to the personal injury of the plaintiff from which he “ suffered great pain and anguish;” and the unliquidated sum of ten thousand dollars is claimed as damages. His contention is further answered, in my opinion,' in the case of Burrell v. Preston, 54 Hun, 71, where the court say: “ The counsel for the appellant argues, quite against the plain utterance of the Code of Civil Procedure, as it seems to us, that, inasmuch as the relation existing between the patient and the doctor
“ Within two years:
“ 1. An action to recover damages for libel, slander, assault, battery, seduction, criminal conversation, false imprisonment, malicious prosecution or malpractice. ’ ’
Demurrer overruled with ten dollars costs.