Banks v. Hanson Place Dental Associates

In an action to recover damages for dental malpractice, (1) the defendants Renrick Benn and Alan Weiner separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated September 4, 1996, as denied their respective motions to dismiss the complaint insofar as it was asserted against them, and (2) the defendant Albert Rabizadeh appeals from so much of the same order as granted the plaintiff’s motion to strike his first affirmative defense of Statute of Limitations.

Ordered that the order is modified by deleting the third, fourth, fifth, and sixth decretal paragraphs thereof and substituting therefor a provision denying the plaintiff’s motion to strike the first affirmative defense of the defendant Albert Rabizadeh; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

There are questions of fact as to whether the defendants were “united in interest” (see, Ruane v Cooper, 127 AD2d 524; Lanza v Parkeast Hosp., 102 AD2d 741). Therefore, the Supreme Court should not have granted the plaintiffs motion to strike the defendant Albert Rabizadeh’s first affirmative defense of Statute of Limitations.

The appellants’ remaining contentions are without merit. Thompson, J. P., Joy, Friedmann and Krausman, JJ., concur.