| Cherise v Braff |
| 2008 NY Slip Op 03162 [50 AD3d 724] |
| April 8, 2008 |
| Appellate Division, Second Department |
| Marie Cherise et al., Appellants, v George Braff et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andJulian L. Kalkstein of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1)an order of the Supreme Court, Kings County (Levine, J.), dated October 20, 2006, whichgranted the defendants' motion for summary judgment dismissing the complaint as time-barred,and (2) a judgment of the same court entered December 6, 2006, which, upon the order, is infavor of the defendants and against them dismissing the complaint. The notice of appeal from theorder dated October 20, 2006 is deemed also to be a notice of appeal from the judgment(see CPLR 5501 [c]).
Ordered that the appeal from the order dated October 20, 2006 is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendants' motion for summaryjudgment dismissing the complaint as time-barred is denied, the complaint is reinstated, and theorder is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
In 1997 the plaintiff Marie Cherise (hereinafter the plaintiff) had a routine physicalexamination at the defendant Cumberland Diagnostic and Treatment Center (hereinafterCumberland), which was operated by the defendant New York City Health and Hospitals [*2]Corporation (hereinafter the NYCHHC). A mammogram wasperformed at Cumberland as part of the examination. The radiologist interpreting themammogram noted a "fibroadenoma at the left breast." The radiologist recommended asonogram, which was performed at Cumberland, and which was reported as "negative." Theradiologist also recommended a "six month mammographic evaluation . . . toevaluate the changes at the left breast."
In 1999 another mammogram was performed on the plaintiff at Cumberland as part of aphysical examination. The defendant George Braff, who was the radiologist interpreting thatmammogram, observed "a calcified fibroadenoma in the left breast." He recommended a"[f]ollow-up" in a year.
In 2000 another mammogram was performed on the plaintiff at Cumberland as part of aphysical examination. In interpreting the 2000 mammogram, Dr. Braff observed and reported:"Stable pattern. Calcifying fibroadenoma." He recommended a follow-up in a year.
In 2001 and 2002 two more mammograms were performed on the plaintiff at Cumberland aspart of physical examinations. Each year, in interpreting the mammograms, Braff, who comparedthe mammograms to the prior mammograms, observed that there had "been no significantinterval change." He also recommended a "1 year screening mammogram."
In 2003 another mammogram was performed on the plaintiff at Cumberland as part of aphysical examination. The radiologist interpreting the mammogram, who compared themammogram to the two most recent mammograms, observed "a 3 cm irregular mass. . . in the left breast" that "increased in size" from the prior mammograms. Abiopsy of that mass revealed that the mass was an "invasive ductal carcinoma."
In October 2004 the plaintiff and her husband, alleging that the defendants improperly failedto diagnose the plaintiff's breast cancer in a timely manner, commenced the instant action torecover damages for injuries they allegedly sustained as a result of alleged medical malpractice.After a note of issue was filed, the defendants moved for summary judgment dismissing thecomplaint as time-barred. The Supreme Court granted the motion. We reverse.
The defendants established their entitlement to summary judgment dismissing the complaintas time-barred. A cause of action against the NYCHHC or its employees to recover damages formedical malpractice must be commenced within one year and 90 days of the accrual of the causeof action (see McKinney's Uncons Laws of NY § 7401 [2] [New York City Healthand Hospitals Corporation Act § 20 (2); L 1969, ch 1016, as amended]; Oksman v Cityof New York, 271 AD2d 213, 214-215 [2000]). The defendants established that the instantaction was commenced more than one year and 90 days after the accrual of the malpracticeclaim, which was specifically based upon acts and omissions occurring between June 14, 2001and June 17, 2002.
However, in opposition, the plaintiff and her husband raised a triable issue of fact as towhether the statute of limitations was tolled by the continuous treatment doctrine (seeMcDermott v Torre, 56 NY2d 399, 406-407 [1982]). Although routine followup testing doesnot support the application of the continuous treatment toll (see Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774[2007]), the monitoring of an abnormal condition may be sufficient to do so (see Mandel vHerrmann, 271 AD2d 661, 662 [2000]; Oksman v City of New York, 271 AD2d at215). Thus, "an agreement between physician and patient to continue observation of suspiciousbreast tissue may constitute sufficient monitoring to support a finding of continuous treatment"(Oksman v City of New York, 271 AD2d at 215). [*3]Under the circumstances, where, inter alia, the plaintiff testified ather deposition that Cumberland's physicians "told" her that she "ha[d] to go" to Cumberland"every year" for a "checkup" and a mammogram because of her "fibro," an issue of fact exists asto whether the continuous treatment doctrine applies (see Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; Prinz-Schwartz v Levitan, 17 AD3d175, 177-179 [2005]; Close v Gorman, 284 AD2d 1013, 1013-1014 [2001];Oksman v City of New York, 271 AD2d at 215; Pace v Caron, 232 AD2d 617[1996]). Accordingly, the Supreme Court should have denied the defendants' motion forsummary judgment dismissing the complaint as time-barred. Spolzino, J.P., Miller, Covello andBalkin, JJ., concur.