| Kaufmann v Fulop |
| 2008 NY Slip Op 00234 [47 AD3d 682] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Tara Kaufmann, Respondent, v Robert Fulop et al.,Defendants, and Valeria Asimenios et al., Appellants. |
—[*1] Amabile & Erman, P.C., Staten Island, N.Y. (Marc J. Falcone of counsel), for appellantCesar Seguritan. Ameduri, Galante & Friscia, Staten Island, N.Y. (Anthony L. Ameduri, Christina E. Curry,and Marvin Ben-Aron of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, (1)the defendant Cesar Seguritan appeals, as limited by his brief, from so much of an order of theSupreme Court, Richmond County (Minardo, J.), dated October 17, 2006, as denied his motionpursuant to CPLR 3211 (a) (5) and CPLR 214-a to dismiss as time-barred so much of thecomplaint insofar as asserted against him as was based upon alleged acts of medical malpracticeoccurring before June 2001 and (2) the defendant Valeria Asimenios separately appeals, aslimited by her brief, from so much of the same order as denied that branch of her motion, madejointly with the defendant Robert Fulop, which was pursuant to CPLR 3211 (a) (5) and CPLR3212 to dismiss as time-barred so much of the complaint insofar as asserted against her as wasbased upon alleged acts of medical malpractice occurring before February 28, 2000.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of coststo the appellants appearing separately and filing separate briefs, the motion of the [*2]defendant Cesar Seguritan pursuant to CPLR 3211 (a) (5) andCPLR 214-a to dismiss as time-barred so much of the complaint insofar as asserted against himas was based upon alleged acts of medical malpractice occurring before June 2001 is granted, andthat branch of the joint motion of the defendants Valeria Asimenios and Robert Fulop which waspursuant to CPLR 3211 (a) (5) and CPLR 3212 to dismiss so much of the complaint insofar asasserted against the defendant Valeria Asimenios as was based upon alleged acts of medicalmalpractice occurring before February 28, 2000, is granted.
The Supreme Court erred in denying that branch of the joint motion of the defendants ValeriaAsimenios and Robert Fulop which was pursuant to CPLR 3211 (a) (5) and CPLR 3212 todismiss as time-barred so much of the complaint insofar as asserted against the defendant ValeriaAsimenios as was based upon alleged acts of medical malpractice occurring before February 28,2000. Asimenios established her prima facie entitlement to judgment as a matter of law bydemonstrating that the action insofar as asserted against her was commenced after the expirationof the applicable statute of limitations with respect to those claims (see Waring v Kingston DiagnosticRadiology Ctr., 13 AD3d 1024, 1025 [2004]). In response to that showing, the plaintifffailed to demonstrate the existence of a triable issue of fact as to whether the doctrine ofcontinuous treatment tolled the statute of limitations for those claims (see Cox v KingsboroMed. Group, 88 NY2d 904, 906 [1996]).
"For the continuous treatment doctrine to apply, further treatment must be explicitlyanticipated by both the physician and patient, as demonstrated by a regularly-scheduledappointment for the near future, which was agreed upon at the last visit and conforms to theperiodic appointments relating to the treatment in the immediate past" (Monello v Sottile,Megna, 281 AD2d 463, 464 [2001]; see Young v New York City Health & Hosps. Corp.,91 NY2d 291, 296 [1998]). Further, the plaintiff must establish that a course of treatmentwas established concerning the condition which gave rise to the action (see Young v NewYork City Health & Hosps. Corp., 91 NY2d at 296). Here, the plaintiff failed to demonstratethat, after a follow-up chest X-ray was taken on January 24, 2000 a future visit related to anylung-related complaints was planned.
The Supreme Court also erred in denying the motion of the defendant Cesar Seguritanpursuant to CPLR 3211 (a) (5) and CPLR 214-a to dismiss as time-barred so much of thecomplaint insofar as asserted against him as was based upon alleged acts of medical malpracticeoccurring before June 2001 on the ground that the continuous treatment doctrine tolled the statuteof limitations for those acts. In general, the continuous treatment doctrine does not apply to adiagnostician, such as a radiologist, who renders discrete, intermittent medical services, unlessthe diagnostician has a continuing or other relevant relationship with the patient or acts as anagent for the physician or " 'otherwise acts in relevant association' " with the physician (Elkin v Goodman, 24 AD3d 717,718 [2005], quoting McDermott v Torre, 56 NY2d 399, 408 [1982]; see Brocco vWestchester Radiological Assoc., 175 AD2d 903, 904 [1991]; Noack v Symenow,132 AD2d 965, 966 [1987]; Damsker v Berger, 123 AD2d 343, 344 [1986]). Thecontinuous treatment doctrine may also apply where "periodic diagnostic examinations areprescribed as part of ongoing care for a plaintiff's existing condition that are explicitly anticipatedby physician and patient alike" (Elkin v Goodman, 285 AD2d 484, 486 [2001]; seeWaring v Kingston Diagnostic Radiology Ctr., 13 AD3d at 1026).
Here, the record does not reflect that either Seguritan or the plaintiff's decedent in any waycontemplated that, after the January 24, 2000 chest X-ray, further chest X-rays would be taken ona periodic basis. Moreover, the record contains no evidence that there was a relevant association[*3]between Seguritan and Fulop's group practice for purposes ofthe doctrine of continuous treatment (see McDermott v Torre, 56 NY2d at 408; Teerv Queens-Long Is. Med. Group, 303 AD2d 488, 490 [2003]; Solomonik v Elahi, 282AD2d 734, 736 [2001]; Yanello v Radiological Health Serv., 110 AD2d 834, 834-835[1985]).
Accordingly, to the extent causes of action were asserted against Seguritan based on allegedacts of medical malpractice occurring before June 2001 and against Asimenios, based on allegedacts of medical malpractice occurring before February 28, 2000, they should have beendismissed. Crane, J.P., Rivera, Florio and Balkin, JJ., concur.