Linker v. Malpeso


New York Law Journal


Justice Joan Lobis

Malpeso, a dentist, moved for summary judgment dismissing patient Linker's dental malpractice action as time-barred. Linker argued Malpeso improperly performed restorations, and as a result of the alleged malpractice she suffered severe pain and suffering, humiliation and an inability to pursue her normal social activities. Malpeso claimed Linker's case file indicated the case was completed as of Sept. 11, 2008, claiming she only returned for normal dental care thereafter, thus, the continuous treatment doctrine was inapplicable to toll the statute of limitations. Linkers argued issues of fact existed as to Malpeso's continuous treatment up to and including the last date of treatment on June 1, 2010, noting he continued to monitor her condition after Sept. 11, 2008. She also claimed treatment could not have been completed at that time as the Temp-Bond used was not a permanent cement. Linker's expert, Dr. Gross, agreed, disputing Malpeso's claim that Temp-Bond may be used to permanently cement restorations. The court ruled as issues of fact remain whether the continuous treatment doctrine applied to Malpeso's treatment of the restorations, including the parties' inconsistent statements, dismissal was denied.

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