| Anderson v Central Brooklyn Med. Group |
| 2008 NY Slip Op 03405 [50 AD3d 829] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Maria Anderson, Respondent, v Central Brooklyn MedicalGroup et al., Defendants, and Harvey Goldstein, Appellant. |
—[*1] Douglas & London, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJosephIII] of counsel), for respondent.
In a consolidated action, inter alia, to recover damages for medical malpractice and wrongfuldeath, etc., the defendant Harvey Goldstein appeals, as limited by his brief, from so much of anorder of the Supreme Court, Kings County (Steinhardt, J.), dated January 3, 2007, as denied hismotion pursuant to CPLR 3211 (a) (5), 214-a, and 3212 to dismiss the complaint insofar asasserted against him as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant Harvey Goldstein to dismiss the complaint insofar as asserted againsthim is granted.
The Supreme Court erred in denying the motion of the defendant Harvey Goldstein pursuantto CPLR 3211 (a) (5), 214-a, and 3212 to dismiss the complaint insofar as asserted against himas time-barred. Goldstein established his prima facie entitlement to judgment as a matter of lawby demonstrating through his deposition testimony and submission of the decedent's medicalrecords that the action insofar as asserted against him was commenced after the expiration of theapplicable statute of limitations (seeKaufmann v Fulop, 47 AD3d 682 [2008]). In response, the plaintiff failed todemonstrate the existence of a triable issue of fact as to whether the doctrine of continuoustreatment tolled the statute of limitations (id.; DiGiaro v Agrawal, 41 AD3d [*2]764, 766 [2007]).
In order "[f]or the continuous treatment doctrine to apply, further treatment must beexplicitly anticipated 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]; Chulla v DiStefano, 242 AD2d 657, 658 [1997]).
Here, the plaintiff failed to demonstrate that, after a second visit with Goldstein in February2002 any future visit was planned. Rather, Goldstein's submissions demonstrated that thecondition for which he was treating the decedent, a lump on a lymph node, had resolved itself bythe second visit, and that no future treatment was anticipated for this specific condition. Skelos,J.P., Covello, Eng and Leventhal, JJ., concur.