Schwartz v. Unger, 108 Misc. 2d 456

Schwartz v. Unger

108 Misc. 2d 456 | N.Y. Sup. Ct. | 1981

OPINION OF THE COURT

B. Thomas Pantano, J.

In this dental malpractice action defendant moves to dismiss the complaint. The complaint alleges a continuous course of treatment from September 15,1970 to March 12, 1978. The defendant, now a resident of British Columbia and retired, was served on August 28, 1980.

Defendant’s affidavit states that in September of 1977 he sold his dental practice remaining on until December of 1977 to introduce his patients to the purchaser. He contends he rendered no treatment to the plaintiff from September, 1977 on and therefore the action is barred by the Statute of Limitations since it was not commenced within two and a half years of the date of last treatment. (CPLR 214-a.)

This last cited section became effective July 1, 1975 and applies to actions for medical malpractice requiring them to be commenced within two years and six months. In the Practice Commentary by Joseph M. McLaughlin, he states: “The primary purpose of the new malpractice bill is to minimize claim loss experience so that medical malpractice insurance premiums will be kept within acceptable reach.” (McKinney’s Cons Laws of NY, Book 7B, 1980-1981 Pocket Part, CPLR 214-a, p 131; emphasis added.)

In the case before the court we are dealing with an alleged dental malpractice claim. It is the court’s opinion that CPLR 214-a does not apply to a dental malpractice *457claim. (Opns Atty Gen, Oct. 23, 1979.) In his opinion the Attorney-General, upon inquiry as to the application of chapter 109 of the Laws of 1975 which included CPLR 214-a said in part: “It is clear that in enacting Chapter 109, the Legislature was concerned with the threatened loss of malpractice insurance for hospitals and physicians and intended such chapter to apply to physicians alone and not to members of other professions associated with medicine, such as nurses, dentists, etc.”

With this the court agrees. The applicable statute is CPLR 214. Since the summons and complaint were served on August 28, 1980 and defendant by his own admission was still practicing until September, 1977 the action was timely commenced.

The motion is denied.