| Ramos v Rakhmanchik |
| 2008 NY Slip Op 01517 [48 AD3d 657] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Ysabella Ramos, Appellant, v Emmanuil Rakhmanchik etal., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart and DrakeA. Colley of counsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, etc., theplaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), datedOctober 17, 2006, which granted the defendants' motion for partial summary judgmentdismissing all causes of action that were based on treatment rendered before June 2002 astime-barred and for failure to timely serve a notice of claim.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forpartial summary judgment dismissing all causes of action that were based on treatment renderedbefore June 2002 as time-barred and for failure to timely serve a notice of claim is denied.
On October 9, 2001 the plaintiff's decedent sought treatment for chest pain and shortness ofbreath at the defendant Coney Island Hospital (hereinafter the Hospital), a municipal hospitalowned and operated by the defendant New York City Health and Hospitals Corporation(hereinafter HHC). From October to December she returned to the Hospital for two more visits,complaining of palpitations and a cough. At her visit on December 17, 2001 she was directed toreturn in three months. The decedent missed her next appointment, but returned in June 2002complaining of a cough and shoulder pain. After several further visits, she was diagnosed withlung cancer in November 2002.[*2]
The decedent served a notice of claim on November 15,2002 and commenced this action in June 2003. She died on May 13, 2004 after being admitted tothe emergency room for severe respiratory distress, and the complaint was subsequently amendedto add a cause of action alleging wrongful death. The defendants moved for partial summaryjudgment dismissing all causes of action that were based on treatment rendered before June 2002as barred by the applicable statute of limitations (see McKinney's Unconsolidated Lawsof NY § 7401 [2]) and for failure to serve a timely notice of claim (see GeneralMunicipal Law § 50-e; McKinney's Unconsolidated Laws § 7401 [2]). The SupremeCourt granted the motion and the plaintiff appeals. We reverse.
In opposition to the defendants' prima facie showing of entitlement to partial summaryjudgment, the plaintiff raised a triable issue of fact as to whether the continuous treatmentdoctrine may be invoked (see Shifrina vCity of New York, 5 AD3d 660 [2004]; Couch v County of Suffolk, 296 AD2d194 [2002]). The 90-day period for serving a notice of claim and the statute of limitations may betolled when continuous treatment is sought for the same illness, injury, or condition which gaverise to the alleged malpractice (see Plummer v New York City Health & Hosps. Corp., 98NY2d 263, 267 [2002]; McDermott v Torre, 56 NY2d 399, 406 [1982]). "Includedwithin the scope of 'continuous treatment' is a timely return visit instigated by the patient tocomplain about and seek treatment for a matter related to the initial treatment" (McDermott vTorre, 56 NY2d at 406, quoting Couch v County of Suffolk, 296 AD2d at 196).
Here, the decedent repeatedly sought treatment from HHC for symptoms that, according tothe plaintiff's expert affidavit, were all indicative of lung cancer. In wrongful death actions, "theplaintiff is entitled to every inference that can reasonably be drawn from the evidence indetermining whether a prima facie case is made" (Marsch v Catanzaro, 40 AD3d 941, 942 [2007]). Here, it can bereasonably inferred that the decedent did not intend to sever her relationship with the defendantswhen she missed one appointment but returned three months later seeking treatment for relatedconditions. Thus, the Supreme Court erred in granting partial summary judgment dismissing allcauses of action that were based on treatment rendered before June 2002 (see Vaughn v City of New York, 4AD3d 412, 414 [2004]). Mastro, J.P., Skelos, Florio and Dickerson, JJ., concur.