Lane v. Feinberg

In an action to recover damages for dental malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), dated May 24, 2001, which granted the motion of the defendants Lita Feinberg and Edward M. Feinberg for partial summary judgment dismissing certain causes of action insofar as asserted against them as time-barred. Ordered that the order is affirmed, with costs. The respondents made a prima facie showing of their entitlement to judgment as a matter of law on the ground that certain 655 causes of action alleging dental malpractice were time-barred. The burden then shifted to the plaintiffs to lay bare their proof and establish that the continuous treatment doctrine applied (see Kasten v Blaustein, 214 AD2d 539; Grassman v Slovin, 206 AD2d 504). The plaintiffs failed to demonstrate that the respondents’ treatment of the plaintiff Gary Lane after October 30, 1995, constituted continuous treatment for the same illness, injury, or condition underlying the subject causes of action alleging dental malpractice (see Rizk v Cohen, 73 NY2d 98; Kasten v Blaustein, supra; Juba v Bachman, 255 AD2d 492). The affidavit of the plaintiff Gary Lane in opposition contradicted his sworn deposition testimony and was properly disregarded (see Samuel v Khalid, 246 AD2d 523). The remainder of the plaintiffs’ submissions failed to demonstrate the existence of a triable issue of fact, as their expert’s affidavit contained only conclusory statements and failed to address the statements made by the respondents’ expert (see Kaplan v Hamilton Med. Assoc., 262 AD2d 609). S. Miller, J.P., Krausman, H. Miller and Adams, JJ., concur.