Provenzano v. Becall

Mar 21, 1988
Versions:138 A.D.2d 585
526 N.Y.S.2d 167
1988 N.Y. App. Div. LEXIS 3109

In an action to recover damages for dental malpractice, the plaintiff Lorayne Provenzano appeals from an order of the Supreme Court, Kings County (Scholnick, J.), dated April 6, 1987, which denied her motion to strike the defense of the Statute of Limitations from the defendant’s answer.

Ordered that the order is affirmed, with costs.

It is now clear that intentionally implanted devices, in this case silver point wires permanently fixed in various areas of the plaintiff’s mouth during the course of root-canal therapy, cannot be considered "foreign objects” within the meaning of CPLR 214-a (cf., Goldsmith v Howmedica, Inc., 67 NY2d 120, 122, n 3; see, Lombardi v DeLuca, 130 AD2d 632, lv granted 70 NY2d 612; Mitchell v Abitol, 130 AD2d 633). Therefore, the plaintiff’s contention that, because the wires in or underneath two teeth improperly extruded into soft gum tissue, these wires became "foreign objects” which "contributed” to the deterioration of the plaintiff’s mouth but which were allegedly not discovered until six years after completion of treatment is without merit. Consequently, the Supreme Court properly declined to dismiss the Statute of Limitations as an affirmative defense. Lawrence, J. P., Rubin, Eiber and Harwood, JJ., concur.