| Anderson v Central Brooklyn Med. Group |
| 2008 NY Slip Op 08688 [56 AD3d 500] |
| November 12, 2008 |
| Appellate Division, Second Department |
| Maria Anderson, Respondent, v Central Brooklyn MedicalGroup et al., Appellants, et al., Defendants. |
—[*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 defendants Central Brooklyn Medical Group, Mark Lee, and Julieta V. Tangappeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County(Steinhardt, J.), entered November 2, 2007, as denied that branch of the motion of the defendantsMark Lee and Julieta V. Tang which was for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the appeal by the defendant Central Brooklyn Medical Group is dismissed, as itis not aggrieved by the order appealed from (see CPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from by the defendants Mark Lee andJulieta V. Tang, on the law, and that branch of the motion of those defendants which was forsummary judgment dismissing the complaint insofar as asserted against them is granted; and it isfurther,
Ordered that one bill of costs is awarded to the defendants Mark Lee and Julieta V. Tang.[*2]
The Supreme Court erred in denying that branch of themotion of the defendants Mark Lee and Julieta V. Tang which was for summary judgmentdismissing the complaint insofar as asserted against them. Both Lee and Tang established theirprima facie entitlement to judgment as a matter of law by demonstrating, through depositiontestimony and the submission of the decedent's medical records, that the action insofar asasserted against them was commenced after the expiration of the applicable statute of limitations(see CPLR 214-a; Kaufmann vFulop, 47 AD3d 682 [2008]). In opposition, the plaintiff failed to demonstrate theexistence of a triable issue of fact as to whether the doctrine of continuous treatment tolled thestatute of limitations for those claims (see Kaufmann v Fulop, 47 AD3d 682 [2008]; DiGiaro v Agrawal, 41 AD3d 764,766 [2007]).
"For the continuous treatment doctrine to apply, further treatment must be explicitlyanticipated 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]; McDermott v Torre, 56 NY2d 399, 405 [1982]).Here, the plaintiff failed to demonstrate that future visits were anticipated after Lee or Tangreferred the decedent to specialists (see Young v New York City Health & Hosps. Corp.,91 NY2d at 296; Elrington v Staub,29 AD3d 939 [2006]). Spolzino, J.P., Florio, McCarthy and Dickerson, JJ., concur.