| Adams v Back |
| 2009 NY Slip Op 05935 [64 AD3d 1070] |
| July 23, 2009 |
| Appellate Division, Third Department |
| Tascha Adams, as Administrator of the Estate of Juanita Adams,Deceased, Respondent, v Ephraim Back et al., Appellants, et al.,Defendants. |
—[*1] Breakstone Law Firm, Bellmore (Jay L.T. Breakstone of counsel), and Krentsel & Guzman,New York City, for respondent.
McCarthy, J. Appeal from an order of the Supreme Court (Kramer, J.), entered July 28, 2008in Schenectady County, which, among other things, denied a motion by defendants EphraimBack and St. Clare's Hospital for partial summary judgment.
Juanita Adams (hereinafter decedent) had been a patient of defendant Ephraim Back since1997. Between 1997 and 2005, decedent, who had a history of smoking, was treated for manyailments, including repeated upper respiratory infections, sputum-producing coughs, wheezing,hoarseness and bronchitis. In December 2003, she had an abnormal chest X ray followingcomplaints of a persistent cough, blood in the sputum and a fever. No follow-up chest X ray,blood work or other diagnostic test was ordered at this time. She thereafter continued to makecomplaints of upper respiratory problems and also experienced significant and unintendedweight loss. On June 22, 2005, approximately eight weeks after diagnosis, she died from lungcancer.
Plaintiff then commenced this action to recover for medical malpractice and wrongful [*2]death on December 27, 2006 alleging a failure to timely diagnosethis condition. Back and defendant St. Clare's Hospital (hereinafter collectively referred to asdefendants) moved for partial summary judgment dismissing, as time-barred, any allegation ofmalpractice arising out of treatment prior to June 27, 2004. Defendants also moved to compelexpert disclosure in compliance with CPLR 3101 (d). Plaintiff opposed the motion andcross-moved to strike two affirmative defenses (one alleging statute of limitations and anotheralleging failure to state a cause of action). Supreme Court denied defendants' motion and grantedplaintiff's cross motion to strike. This appeal ensued.
While defendants established a prima facie entitlement to summary judgment dismissing, astime-barred, so much of the complaint as was based on alleged acts of medical malpracticecommitted prior to June 27, 2004, the period that was more than 2½ years prior tocommencement of this action (see CPLR 214-a; Cox v Kingsboro Med. Group,88 NY2d 904, 906 [1996]; Waring vKingston Diagnostic Radiology Ctr., 13 AD3d 1024, 1025 [2004]), plaintiff raised atriable issue of fact as to whether the treatment received during this period constitutedcontinuous treatment sufficient to toll the statute of limitations (see Young v New York CityHealth & Hosps. Corp., 91 NY2d 291, 296-297 [1998]).[FN*]In short, decedent was continuously under the care of Back (see Richardson vOrentreich, 64 NY2d 896 [1985]) during which time she repeatedly sought treatment forsymptoms which, according to plaintiff's expert affidavit, were indicative of lung cancer (see Ramos v Rakhmanchik, 48 AD3d657 [2008]; Davidson vO'Brien, 21 AD3d 1330, 1330-1331 [2005]; Bonanza v Raj, 280 AD2d 948, 949[2001]; Green v Varnum, 273 AD2d 906, 907 [2000]; Hill v Manhattan W. Med.Group—H.I.P., 242 AD2d 255, 255-256 [1997]).
Next, in denying defendants' motion "in its entirety," Supreme Court was obviouslyunpersuaded by their contention that the affidavit of plaintiff's expert had no probative valuebecause it was "unsigned and unsworn." In opposing summary judgment, plaintiff's counselaverred that he was submitting a redacted affidavit to omit reference to the expert's identity(see CPLR 3101 [d] [1] [i]), and further averred that he would provide the original toSupreme Court in camera (compare Wilcox v Winter, 282 AD2d 862, 863-864 [2001]).In response to an allegation by defense counsel that this affidavit was never actually signed orsworn to, plaintiff's counsel thereafter represented on the record in open court that it had indeedbeen signed and offered to show it to the court if his representations as "an officer of the court"were not sufficient.
To be sure, the record does not specifically reveal whether Supreme Court actually reviewedthe unredacted affidavit during that court appearance or at some point before signing the orderdenying summary judgment. Supreme Court's disposition of the matter reveals that the court wasindeed satisfied that the affidavit was in sufficient form (compare Morrison v Hindley,221 AD2d 691, 693 [1995]). Given this disposition, in conjunction with the unequivocal offersby plaintiff's counsel to submit the affidavit for in camera review and representations on therecord that it had in fact been signed (see Mattis v Keen, Zhao, 54 AD3d 610, 611-612 [2008]; Rose v Horton Med. Ctr., 29 AD3d977, 978 [2006]; Kruck v St. John's Episcopal Hosp., 228 [*3]AD2d 565, 566 [1996]), we are unpersuaded by defendants'contention that Supreme Court erred in denying their motion for summary judgment on theground that plaintiff failed to meet her burden of raising a question of fact with competentevidence.
Finally, we find no abuse of discretion in Supreme Court finding that plaintiff's supplementalexpert disclosure was adequate (see CPLR 3101 [d] [1]; Cocca v Conway, 283AD2d 787, 788 [2001], lv denied 96 NY2d 721 [2001]; see generally Gross v Sandow, 5AD3d 901, 902 [2004], lv dismissed and denied 3 NY3d 735 [2004];Washington v Albany Hous. Auth., 297 AD2d 426, 428 [2002]) or in the court's tacitrejection of defendants' claim that plaintiff's opposition papers should not have been consideredon timeliness grounds, particularly in the absence of any demonstration of prejudice todefendants.
Cardona, P.J., Rose, Kane and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted plaintiff's cross motion to strike thestatute of limitations defense of defendants Ephraim Back and St. Clare's Hospital; said crossmotion denied to said extent; and, as so modified, affirmed.
Footnote *: In finding that plaintiff raised aquestion of fact on this issue, we note that Supreme Court erred by striking the affirmativedefense of the statute of limitations with respect to acts occurring prior to June 27, 2004.