Chkhartishvili v Volovoy
2007 NY Slip Op 08028 [44 AD3d 893]
October 23, 2007
Appellate Division, Second Department
As corrected through Wednesday, December 12, 2007


Alina Chkhartishvili et al., Respondents,
v
Vitaly Volovoy,Appellant, et al., Defendant.

—[*1]Kanterman, O'Leary & Soscia, LLP, Jamaica, N.Y. (Joseph D. Furlong of counsel), forappellant.

Sherman & Basichas, LLP (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J.Isaac and Kenneth J. Gorman] of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, the defendant VitalyVolovoy, appeals from an order of the Supreme Court, Kings County (Levine, J.), dated February23, 2007, which denied his motion for partial summary judgment dismissing, as time-barred, somuch of the complaint as was based upon alleged acts of malpractice occurring before September25, 2001, insofar as asserted against him.

Ordered that the order is affirmed, with costs.

The decedent had been seeing the defendant Vitaly Volovoy (hereinafter the defendant) fortreatment of various upper body aches and pains (hereinafter the core symptoms) from March2001 through December 2001. In December 2001 he was diagnosed with lung cancer, ultimatelysuccumbing to the disease on March 26, 2002. The plaintiffs alleged that the defendant failed totimely diagnose and treat the decedent's lung cancer condition.

The defendant established his entitlement to partial summary judgment dismissing, astime-barred, so much of the complaint as was based upon alleged acts of malpractice committedprior to September 25, 2001, i.e., 2½ years before commencement of the action, insofar asasserted against him (see CPLR 214-a; Schreiber v Zimmer, 17 AD3d 342, 343 [2005]). In opposition, theplaintiffs raised a triable issue of fact as to whether the statute of limitations was tolled by thecontinuous [*2]treatment doctrine based on the defendant'streatment of the decedent's core symptoms (see Couch v County of Suffolk, 296 AD2d194, 196 [2002]; see also Matter ofMcCoy v City of New York, 10 AD3d 724, 725 [2004]; see generally Young v NewYork City Health & Hosps. Corp., 91 NY2d 291, 295-296 [1998]). Accordingly, theSupreme Court properly denied the defendant's motion (see generally Alvarez v ProspectHosp., 68 NY2d 320 [1986]). Crane, J.P., Florio, Lifson and Carni, JJ., concur.


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