| Ferreira v Maimonides Med. Ctr. |
| 2007 NY Slip Op 06627 [43 AD3d 856] |
| September 11, 2007 |
| Appellate Division, Second Department |
| Daniel Ferreira, Appellant, v Maimonides Medical Center,Respondent. |
—[*1] McAloon & Friedman, P.C., New York, N.Y. (Laura R. Shapiro, Timothy J. O'Shaughnessy,and Linda McMillan of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1)as limited by his brief, from so much of an order of the Supreme Court, Kings County(Steinhardt, J.), dated January 26, 2006, as granted the defendant's motion to dismiss thecomplaint as time-barred and denied, as academic, the plaintiff's cross motion, among otherthings, to compel certain disclosure, and (2) from a judgment of the same court entered March23, 2006, which, upon the order, dismissed the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the order is vacated, the motion forsummary judgment dismissing the complaint as time-barred is denied, the complaint isreinstated, and the matter is remitted to the Supreme Court, Kings County, for a determination ofthe plaintiff's cross motion on the merits; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of the judgmentin the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on theappeal from the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
On January 25, 2001 Jose Arias was admitted to the defendant hospital because of weaknesson his right side and inability to speak. By January 29, 2001, he had suffered two strokes thatresulted in significant physical and mental deficits, leaving him unresponsive and in need ofbreathing and feeding support. A doctor who visited Arias in July 2003 described him as aphasic,having no spontaneous movement on his right side, and only limited, weak movement on his leftside. Further, he was informed that Arias was being fed by "G-Tube" and intravenous line,needed to be bathed and clothed by hospital staff, and did not move from his bed unless carried.Arias was breathing through a tracheostomy tube connected to a wall-mounted oxygen source.Indeed, Arias still required breathing and feeding support when transferred to a skilled nursingfacility in September 2003.
In October 2004 the plaintiff, as guardian of Arias's property, commenced this action, interalia, to recover damages for medical malpractice. The defendant moved to dismiss the complaintas time-barred, arguing that Arias's cause of action accrued no later than January 29, 2001(see CPLR 214-a). In opposition, the plaintiff argued that the action was timely becausethe statute of limitation was tolled by the continuous treatment doctrine and by the insanity toll ofCPLR 208. Further, the plaintiff cross-moved, among other things, to compel certain disclosure.The Supreme Court granted the defendant's motion to dismiss the complaint as time-barred,finding neither of the tolls applicable, and denied the plaintiff's cross motion as academic. Wereverse the judgment appealed from and remit the matter to the Supreme Court, Kings County,for determination of the plaintiff's cross motion on the merits.
The insanity toll of CPLR 208 is available to "those individuals who are unable to protecttheir legal rights because of an over-all inability to function in society" (McCarthy vVolkswagen of Am., 55 NY2d 543, 548 [1982]; see Schulman v Jacobowitz, 19 AD3d 574, 577 [2005]). Here, inopposition to the defendant's motion to dismiss the complaint as time-barred, the plaintiffdemonstrated, prima facie, that Arias was entitled to the benefit of this toll. In reply, thedefendant hospital failed to rebut that showing (see Schulman v Jacobowitz, 19 AD3d 574, 577 [2005]). Contraryto the defendant's contention, the toll was not terminated when the plaintiff obtained an attorney(see Carrasquillo v Holliswood Hosp.,37 AD3d 509 [2007]; Costello v North Shore Univ. Hosp. Ctr. for Extended Care &Rehabilitation, 273 AD2d 190, 191 [2000]; cf. Henry v City of New York, 94 NY2d275, 279 [1999]). The main case cited by the defendant in support of thatproposition—Sanchez v Wolkoff (247 AD2d 529 [1998])—was expresslyoverruled by this Court in Costello v North Shore Univ. Hosp. Ctr. for Extended Care &Rehabilitation (supra).
In light of our determination, we need not reach the remaining contentions regarding theapplicability of the continuous treatment doctrine. Rivera, J.P., Ritter, Florio and Fisher, JJ.,concur. [See 11 Misc 3d 1075(A), 2006 NY Slip Op 50563(U) (2006).]