| Capece v Nash |
| 2008 NY Slip Op 05871 [52 AD3d 760] |
| June 24, 2008 |
| Appellate Division, Second Department |
| Linda Capece, Appellant, v Thomas Nash,Respondent. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Nancy A. Breslow, Peter T. Crean, andNancy J. Block of counsel), for respondent.
In an action to recover damages for medical malpractice and wrongful death, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 23, 2007, whichgranted the defendant's motion for summary judgment dismissing, as time-barred, so much of thecomplaint as was based upon alleged acts of medical malpractice committed prior to May 21, 2001,and for summary judgment dismissing the wrongful death cause of action, and denied her cross motionto strike the defendant's affirmative defense based on the statute of limitations.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting thatbranch of the defendant's motion which was for summary judgment dismissing the wrongful death causeof action premised on the allegation that medical malpractice was committed on May 24, 2001 andsubstituting therefor a provision denying that branch of the motion, and (2) by deleting the provisionthereof denying that branch of the cross motion which was to strike the affirmative defense of the statuteof limitations with respect to so much of the wrongful death cause of action as was premised on theallegation that medical malpractice was committed on May 24, 2001 and substituting therefor aprovision granting that branch of the cross motion; as so modified, the order is affirmed, without costsor disbursements.
The plaintiff commenced this action on November 20, 2003 alleging, inter alia, that the defendantwas negligent in his treatment of the decedent from November 1999 through May 24, [*2]2001. The defendant, an internist who specializes in infectious diseasesand pulmonary medicine, treated the decedent between December 3, 1999 and June 6, 2000. Thattreatment included a needle biopsy in December 1999 that was negative, and a follow-up CT scan thatwas conducted on June 1, 2000. On June 6, 2000 the defendant recommended that the decedentundergo a further needle biopsy, an open lung biopsy, or an additional CT scan within six months, butthe decedent did not follow-up on the defendant's recommendations, and did not schedule any futureappointments with him.
In March 2001 the decedent was hospitalized for pneumonia and chronic obstructive pulmonarydisease. During that hospitalization an X ray disclosed a condition in her right lung. In early May 2001the decedent was seen by another physician, also a pulmonologist, who suggested she return to thedefendant for further evaluation of the condition disclosed by the X ray. The defendant saw thedecedent on May 24, 2001. At his recommendation, the decedent underwent additional tests and wassubsequently diagnosed with lung cancer.
The defendant established his prima facie entitlement to summary judgment dismissing, astime-barred, so much of the complaint as was based on alleged acts of medical malpractice committedprior to May 21, 2001, the period that was more than 2½ years prior to the commencement ofthe action (see CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904, 906[1996]; Massie v Crawford, 78 NY2d 516, 519 [1991]; Kaufmann v Fulop, 47 AD3d 682 [2008]; Magalios v Nyhlen, 18 AD3d 719[2005]; Schreiber v Zimmer, 17 AD3d342 [2005]). The plaintiff failed to raise a triable issue of fact as to whether the treatment receivedby the decedent on May 24, 2001 constituted "continuous treatment" sufficient to toll the statute oflimitations (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297 [1998];Anderson v Central Brooklyn Med.Group, 50 AD3d 829 [2008]; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774, 775 [2007];Magalios v Nyhlen, 18 AD3d 719[2005]; McPherson v Abraham, 13AD3d 422 [2004]). Accordingly, the Supreme Court properly granted that branch of thedefendant's motion which was for summary judgment dismissing, as time-barred, so much of thecomplaint as was based upon alleged acts of medical malpractice committed prior to May 21, 2001.
However, the Supreme Court erred in granting that branch of the defendant's motion which was forsummary judgment dismissing the wrongful death cause of action in its entirety. The portion of themedical malpractice cause of action that is based on the defendant's treatment of the decedent on May24, 2001 was still viable when the decedent died on January 13, 2003. Accordingly, to the extent thewrongful death cause of action, which was commenced within two years of the decedent's death, ispremised on the allegation that medical malpractice was committed on May 24, 2001 it is nottime-barred (see EPTL 5-4.1; Scanzano v Horowitz, 49 AD3d 855 [2008]; Norum v Landau, 22 AD3d 650[2005]; Murphy v Jacoby, 250 AD2d 826 [1998]). Since so much of the complaint as waspredicated on alleged acts of medical malpractice occurring prior to May 21, 2001 is time-barred, anyaspect of the wrongful death cause of action predicated on those acts is also time-barred.
The plaintiff's remaining contentions are without merit. Spolzino, J.P., Santucci, Angiolillo andBalkin, JJ., concur. [See 14 Misc 3d 1233(A), 2007 NY Slip Op 50290(U).]
[Recalled and vacated by 65 AD3d 1270.]