| Capece v Nash |
| 2010 NY Slip Op 00914 [70 AD3d 743] |
| February 9, 2010 |
| 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.
Motion by the plaintiff for leave to reargue a decision and order on motion of this Courtdated September 29, 2009, which recalled and vacated a decision and order of this Court datedJune 24, 2008, which determined an appeal from an order of the Supreme Court, Kings County(Steinhardt, J.), dated January 23, 2007.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order on motionof this Court dated September 29, 2009 (Capece v Nash, 65 AD3d 1270 [2009]), is recalled and vacated,and the following decision and order on motion is substituted therefor: In an action to recoverdamages for medical malpractice and wrongful death, the plaintiff appeals from an order of theSupreme Court, Kings County (Steinhardt, J.), dated January 23, 2007, which granted thedefendant's motion for summary judgment dismissing, as time-barred, so much of the complaintas was based upon alleged acts of medical malpractice committed prior to May 21, 2001, and forsummary 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. Justice Mastrohas been substituted for former Justice Spolzino (see 22 NYCRR 670.1 [c]).
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendant's motion which was for summary judgment dismissing the wrongfuldeath cause of action to the extent it is premised on acts alleged to have occurred on or after July13, 2000, and substituting therefor a provision denying that branch of the motion, (2) by deletingthe provision thereof granting that branch of the defendant's motion which was for summaryjudgment dismissing the medical malpractice cause of action to the extent it is premised on actsalleged to have occurred before May 21, 2001, and substituting therefor a provision granting[*2]that branch of the motion to the extent that it was to dismissthe medical malpractice cause of action to the extent it is premised on acts alleged to haveoccurred before July 13, 2000, and otherwise denying that branch of the motion, and (3) bydeleting the provision thereof denying that branch of the cross motion which was to strike theaffirmative defense of the statute of limitations to the extent that it was based on acts alleged tohave occurred on or after July 13, 2000, and substituting therefor a provision granting thatbranch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff commenced this action on November 20, 2003, alleging, inter alia, that thedefendant was negligent in his treatment of the decedent from November 1999 through May 24,2001. The defendant, an internist who specializes in infectious diseases and pulmonarymedicine, treated the decedent between December 3, 1999, and July 7, 2000. The decedentconsulted the defendant in connection with a condition in her right lung that had been disclosedduring screening at a clinic on November 17, 1999. The treatment included a needle biopsy inDecember 1999 that was negative, a recommendation that a follow-up CT scan be conducted inthree months, and a follow-up CT scan that was conducted on June 1, 2000. The parties disagreeas to the scope of the defendant's recommendations made on June 6, 2000, but agree that therewas a recommendation that the decedent have an additional CT scan in six months. Thedefendant also requested that the decedent submit a copy of the original CT scan that had beenconducted at the screening clinic, for comparison with the June 1, 2000, scan. The decedentsubmitted a copy of that earlier scan, under cover letter dated July 7, 2000, and the defendantmade a notation for his staff to send the scan to the imaging center that conducted the June 1,2000, scan for comparison. The decedent did not make any future appointments with thedefendant, she did not have the recommended six-month follow-up CT scan, and there is noassertion that she made any inquiry of the defendant as to the status of the proposed comparisonof the two CT scans.
In March 2001, the decedent was hospitalized for pneumonia and chronic obstructivepulmonary disease. During that hospitalization an X-ray again disclosed the condition in herright lung. In early May 2001 the decedent was seen by another physician, also a pulmonologist,who suggested she return to the defendant for further evaluation of the lung condition. Thedefendant saw the decedent on May 24, 2001. At his recommendation, the decedent underwentadditional tests and was subsequently diagnosed with lung cancer. The decedent died on January13, 2003.
The defendant established his prima facie entitlement to judgment as a matter of lawdismissing, as time-barred, so much of the complaint as was based on alleged acts committedprior to July 13, 2000, the period that was more than 2½ years prior to the death of thedecedent (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, 18AD3d 719 [2005]; Schreiber vZimmer, 17 AD3d 342 [2005]). In opposition, the plaintiff failed to raise a triable issueof fact as to the "continuous treatment" doctrine (see generally Gomez v Katz, 61 AD3d 108 [2009]). Theplaintiff may have shown the existence of an initial course of treatment through the monitoringof the specific lung condition (see Ganess v City of New York, 85 NY2d 733, 736[1995]; Cherise v Braff, 50 AD3d724, 726 [2008]; Connors vEng, 42 AD3d 511 [2007]), but she failed to raise a triable issue of fact as to that courseof treatment continuing beyond July 7, 2000. The decedent did not schedule the recommendedfollow-up CT scan, inquire as to the status of the proposed comparison of the scans, or scheduleany other appointment with the defendant until she returned to see him on May 24, 2001, at thesuggestion of another pulmonologist (see Elrington v Staub, 29 AD3d 939 [2006]; Zelig v Urken, 28 AD3d 318[2006]; Palladino v Gutman, 176 AD2d 930, 931 [1991]; Bellmund v Beth IsraelHosp., 131 AD2d 796, 797 [1987]). The plaintiff failed to raise a triable issue of fact as tothe applicability of the "continuous treatment" doctrine sufficient to toll the statute of limitations(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, 18AD3d 719 [2005]; McPherson vAbraham, 13 AD3d 422 [2004]). Accordingly, the Supreme Court properly granted thatbranch of the defendant's motion which was for summary judgment dismissing, as time-barred,so much of the complaint as was based upon alleged acts committed prior to July 13, 2000.
However, the Supreme Court erred in granting that branch of the defendant's motion[*3]which was for summary judgment dismissing so much of thecomplaint as was based upon alleged acts committed on or after July 13, 2000. Claims basedupon alleged acts committed on or after July 13, 2000, were still viable when the decedent diedon January 13, 2003, and the instant action was commenced within one year of the decedent'sdeath. Accordingly, to the extent that the complaint is premised on alleged actscommitted on or after July 13, 2000, it is not time-barred (see EPTL 5-4.1; CPLR 210[a]; Scanzano v Horowitz, 49 AD3d855 [2008]; Norum v Landau,22 AD3d 650 [2005]; Murphy v Jacoby, 250 AD2d 826 [1998]).
The plaintiff's remaining contentions are without merit. Mastro, J.P., Santucci, Angiolilloand Balkin, JJ., concur.