| Texeria v BAB Nuclear Radiology, P.C. |
| 2008 NY Slip Op 07232 [54 AD3d 1022] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Sandra Texeria, Respondent, v BAB Nuclear Radiology,P.C., et al., Appellants, et al., Defendants. |
—[*1] Kramer & Dunleavy, LLP, New York, N.Y. (Lenore Kramer of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants BAB NuclearRadiology, P.C., Stuart Katz, and Paul Bonheim appeal, as limited by their brief, from so muchof an order of the Supreme Court, Suffolk County (Burke, J.), entered October 17, 2006, asdenied that branch of their motion which was for summary judgment dismissing, as time-barred,so much of the complaint as was based upon their alleged acts of medical malpractice committedprior to January 1, 2003.
Ordered that the order is affirmed insofar as appealed from, with costs.
On their motion for summary judgment, the appellants established their prima facieentitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]), by demonstrating that any medical malpractice claims based upon alleged acts theycommitted prior to January 1, 2003, were time-barred (see CPLR 214-a). However, inopposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations wastolled by the continuous treatment doctrine (see Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d895, 896 [2006]). Accordingly, the Supreme Court properly denied that branch of theappellants' motion which was for summary judgment dismissing, as time-barred, so much of thecomplaint as was based upon their alleged acts of medical malpractice committed prior toJanuary 1, 2003. Mastro, J.P., Skelos, Covello and Leventhal, JJ., concur.