| Mule v Peloro |
| 2009 NY Slip Op 01626 [60 AD3d 649] |
| March 3, 2009 |
| Appellate Division, Second Department |
| 31—Marissa Mule et al., Respondents, v BartoloPeloro et al., Defendants, and Lawrence Langan, Appellant. |
—[*1] Krentsel & Guzman, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, thedefendant Lawrence Langan appeals, as limited by his brief, from so much of an order of theSupreme Court, Kings County (Jackson, J.), dated September 10, 2007, as denied his motion forsummary judgment dismissing the complaint insofar as asserted against him as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
Josephine Cicolello was treated by various doctors at the defendant University PhysiciansGroup (hereinafter UPG) on a number of occasions from August 28, 2000, through September14, 2004. She was seen by the appellant, Dr. Lawrence Langan, several times; her lastappointment with him was on December 4, 2001. From that date through September 14, 2004,Cicolello was treated on a number of occasions by other doctors at UPG. She was treated at UPGfor, among other things, pulmonary and respiratory complaints. Cicolello was diagnosed withlung cancer on October 22, 2004, at [*2]a different medicalfacility, and died on November 11, 2004.
The plaintiffs commenced this action, inter alia, to recover damages for medical malpracticeand wrongful death on May 12, 2006, alleging a failure to timely diagnose Cicolello's lungcancer. The appellant moved for summary judgment dismissing the complaint insofar as assertedagainst him on the ground that the action against him was barred by the expiration of the2½ year statute of limitations (see CPLR 214-a) since he last treated Cicolello onDecember 4, 2001, and left UPG on December 31, 2001. The Supreme Court denied the motion.
Medical malpractice actions ordinarily must be commenced "within two years and sixmonths of the act, omission or failure complained of" (DiGiaro v Agrawal, 41 AD3d 764, 767 [2007]; see Nespola v Strang Cancer PreventionCtr., 36 AD3d 774 [2007]; Pierre-Louis v Ching-Yuan Hwa, 182 AD2d 55, 57[1992]). However, under the continuous treatment doctrine, the time in which to "bring amalpractice action is stayed 'when the course of treatment which includes the wrongful acts oromissions has run continuously and is related to the same original condition or complaint' "(McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City of NewYork, 12 NY2d 151, 155 [1962]; see Labshere v Petroski, 32 AD3d 645, 646 [2006]). Further, "[t]hecontinuous treatment doctrine may be applied to a physician who has left a medical group, byimputing to him or her the continued treatment provided by subsequently-treating physicians inthat group" (Solomonik v Elahi, 282 AD2d 734, 735 [2001]; see Watkins vFromm, 108 AD2d 233 [1985]).
The appellant established his prima facie entitlement to summary judgment by submittingevidence that he last treated Cicolello on December 4, 2001 (see Savarese v Shatz, 273AD2d 219, 220 [2000]). In opposition, however, the plaintiffs submitted evidence raising triableissues of fact as to whether the continuous treatment doctrine is applicable and, if so, whethersubsequent treatment may be imputed to the appellant (see LaRocca v DeRicco, 39 AD3d 486 [2007]; Solomonik vElahi, 282 AD2d at 735). Consequently, the Supreme Court properly denied the appellant'smotion for summary judgment dismissing the complaint insofar as asserted against him astime-barred. Mastro, J.P., Balkin, Dickerson and Belen, JJ., concur.