| Rosenthal v So |
| 2010 NY Slip Op 03099 [72 AD3d 784] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Judith Rosenthal, Respondent, v Jenny Ching So et al.,Appellants, et al., Defendants. |
—[*1] Peter E. Tangredi & Associates, White Plains, N.Y. (Marie R. Hodukavich of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants Jenny Ching So,Maxwell B. Plesset, Barbara Alpert, and Mount Kisco Medical Group, P.C., appeal, as limitedby their brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.),dated April 20, 2009, as denied that branch of their motion which was for summary judgmentdismissing those causes of action which were based upon their alleged acts and/or omissionsprior to September 26, 2004, as time-barred pursuant to CPLR 214-a.
Ordered that the order is affirmed insofar as appealed from, with costs.
Beginning in September 2002, the plaintiff received treatment from the defendants JennyChing So, Maxwell B. Plesset, Barbara Alpert, and Mount Kisco Medical Group, P.C.(hereinafter collectively the appellants) for genitourinary complaints. In September and Octoberof 2002, testing revealed the presence of blood in the plaintiff's urine (hereinafter hematuria), forwhich she received treatment from the defendants Jenny Ching So and Maxwell B. Plesset. InJuly 2003 the plaintiff was again treated by these defendants for hematuria. Starting in May2004, she was treated for repeated bladder complaints by the defendant Barbara Alpert, as wellas for a variety of other, unrelated medical conditions. In March 2005 the plaintiff experienced agross hematuria. She was seen the next day by Dr. Alpert, which led to a referral to a urologist,and eventual diagnosis and treatment for bladder cancer.
The plaintiff commenced the instant action on March 26, 2006. The appellants moved, interalia, for summary judgment dismissing those causes of action which were based upon theappellants' alleged acts and/or omissions which occurred prior to September 26, 2004, astime-barred pursuant to CPLR 214-a. In opposition to the appellants' motion, the plaintiffasserted that the doctrine of continuous treatment tolled the statute of limitations. In support ofher affidavit in opposition, the plaintiff submitted an expert affidavit attesting that the appellantsshould have referred the plaintiff for CT scans and cystoscopies in light of her history ofhematuria and other bladder complaints.[*2]
The appellants established their prima facie entitlementto judgment as a matter of law with regard to their alleged acts and/or omissions which occurredprior to September 26, 2004, by demonstrating that the complaint was time-barred to the extentthat it was based upon those acts and/or omissions (see CPLR 214-a; Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]; Gomez vKatz, 61 AD3d 108, 113 [2009]; Marks v Model, 53 AD3d 533 [2008]). In opposition, the plaintiffraised triable issues of fact as to whether the statute of limitations was tolled by the continuoustreatment doctrine based on the appellants' treatment (see Gomez v Katz, 61 AD3d at116-117; Harris v Dizon, 60 AD3d495 [2009]; Chkhartishvili vVolovoy, 44 AD3d 893 [2007]; Couch v County of Suffolk, 296 AD2d 194,197 [2002]; Marun v Coleburn, 291 AD2d 340, 341-342 [2002]). The plaintiff'sopposition papers also raised triable issues of fact as to whether the relationship among thedefendant doctors would enable their conduct to be imputed as to all of them (see Mule v Peloro, 60 AD3d 649,650 [2009]; cf. Harris v North ShoreUniv. Hosp. at Syosset, 16 AD3d 549, 551 [2005]).
Accordingly, that branch of the appellants' motion which was for summary judgmentdismissing those causes of action which were based upon their alleged acts and/or omissionswhich took place prior to September 26, 2004, as time-barred pursuant to CPLR 214-a wasproperly denied. Mastro, J.P., Miller, Austin and Roman, JJ., concur.