| Ryan v Korn |
| 2008 NY Slip Op 09579 [57 AD3d 507] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Margaret Ryan, Respondent, v Jonathan A. Korn et al.,Appellants, et al., Defendant. |
—[*1] Daniel E. Rausher, Brooklyn, N.Y., for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants Jonathan A. Kornand Jeffrey S. Kaplan appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County, dated October 26, 2007 (Levine, J.), as denied that branch of their motion which waspursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them astime-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the appellants' motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against them as time-barred is granted.
On July 9, 2001 the plaintiff, while receiving physical therapy at the offices of the defendantsJonathan A. Korn and Jeffrey S. Kaplan (hereinafter the defendants), allegedly received burns to herleft forearm from moist heating pads that were applied to her arm by a physical therapist who workedin the defendants' office.
On June 28, 2004 the plaintiff commenced this action against the defendants, as well as thephysical therapist. In February 2005 the complaint was dismissed pursuant to CPLR 3211 (a) (8)insofar as asserted against the physical therapist. The defendants subsequently moved pursuant toCPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them on the ground that theaction was not [*2]commenced within two years and six months asrequired by CPLR 214-a, the statute of limitations governing medical malpractice actions. They alsomoved pursuant to CPLR 3042 (d) and 3126, asserting that the plaintiff willfully failed to respond totheir discovery demands and demand for a verified bill of particulars. The Supreme Court denied themotion in its entirety. The defendants now appeal from so much of the order as denied that branch oftheir motion which was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst them as time-barred. We reverse the order insofar as appealed from.
"Conduct may be deemed malpractice, rather than negligence, when it 'constitutes medicaltreatment or bears a substantial relationship to the rendition of medical treatment by a licensedphysician' " (Scott v Uljanov, 74 NY2d 673, 674-675 [1989], quoting Bleiler vBodnar, 65 NY2d 65, 72 [1985]). "The critical factor is the nature of the duty owed to the plaintiffthat the defendant is alleged to have breached" (Caso v St. Francis Hosp., 34 AD3d 714, 714 [2006]; see Bazakos v Lewis, 56 AD3d 15[2008]).
Here, the gravamen of the plaintiff's complaint challenges the treatment she received during physicaltherapy at the defendants' office. The alleged conduct derived from the duty owed to the plaintiff as aresult of the physician-patient relationship and was substantially related to her medical treatment(see Bleiler v Bodnar, 65 NY2d at 72; Morales v Carcione, 48 AD3d 648, 649 [2008]; Caso v St. FrancisHosp., 34 AD3d at 715; Pattavina vDiLorenzo, 26 AD3d 167 [2006]). Since the action sounds in medical malpractice and istherefore subject to the limitations period of two years and six months contained in CPLR 214-a, theSupreme Court should have granted that branch of the defendants' motion which was pursuant toCPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against them as time-barred. Rivera,J.P., Dillon, Covello and McCarthy, JJ., concur.