POLICHETTI v. COHEN

ORDERED that the order is affirmed, with costs.

The defendant made out a prima facie case for summary judgment. In opposition, the plaintiff established the existence of triable issues of fact. The plaintiff submitted a dentist's affidavit of merit stating that the defendant's failure to advise the plaintiff of the potential risks involved in the dental procedure, or to notify him that a dental file had broken off inside his tooth, was a departure from accepted practice which proximately caused his injury ( see, DeStefano v. Immerman, 188 A.D.2d 448; Amsler v. Verrilli, 119 A.D.2d 786).

The broken dental file which was left inside of the plaintiff's tooth is a "foreign object" within the meaning of CPLR 214-a, which delayed the running of the Statute of Limitations until the date the foreign object was or reasonably should have been discovered ( see, Rockefeller v. Moront, 81 N.Y.2d 560; Carmona v. Lutheran Med. Ctr., 238 A.D.2d 535).

The defendant's remaining contention was not raised before the Supreme Court and is therefore not properly before this court ( see, Gross v. Aetna Cas. Sur. Co., 240 A.D.2d 468).

THOMPSON, J.P., KRAUSMAN, H. MILLER, and SCHMIDT, JJ., concur.