| Udell v Naghavi |
| 2011 NY Slip Op 01997 [82 AD3d 960] |
| March 15, 2011 |
| Appellate Division, Second Department |
| John Udell et al., Appellants, v Ray S. Naghavi, M.D., etal., Respondents. |
—[*1] Albanese & Albanese LLP, Garden City, N.Y. (Hyman Hacker of counsel), for respondentsRay S. Naghavi, M.D., and R.S. Naghavi, M.D., PLLC. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Terence S. Reynolds, and Adonaid C. Medina of counsel), for respondent Joseph Crimi,P.A.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal (1) froman order of the Supreme Court, Nassau County (Adams, J.), entered May 18, 2010, whichgranted the motion of the defendant Joseph Crimi, P.A., for summary judgment dismissing thecomplaint insofar as asserted against him and the motion of the defendants Ray S. Naghavi, M.D.and R.S. Naghavi, M.D., PLLC, for summary judgment dismissing, as time-barred pursuant toCPLR 214-a, so much of the complaint insofar as asserted against them as was based upon theiralleged acts or omissions occurring prior to November 27, 2005, (2) from a judgment of the samecourt dated June 29, 2010, which, upon the order entered May 18, 2010, is in favor of thedefendants and against them dismissing the complaint insofar as asserted against the defendantJoseph Crimi, P.A., and dismissing the causes of action insofar as asserted against the defendantsRay S. Naghavi, M.D., and R.S. Naghavi, M.D., PLLC, which were based upon alleged acts oromissions occurring prior to November 27, 2005, and (3), as limited by their brief, from so muchof an order of the same court entered August 26, 2010, as, upon reargument, adhered to the priordetermination in the order entered May 18, 2010.
Ordered that the appeal from the order entered May 18, 2010, is dismissed; and it is further,
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the complaint insofar as asserted against the defendant Joseph Crimi, P.A., insofar asit is based upon his alleged acts or omissions occurring on or after November 27, 2005; as somodified, the judgment is affirmed, and that branch of the motion of the defendant Joseph Crimi,P.A., which was for summary judgment dismissing the complaint insofar as asserted against himfor [*2]acts or omissions occurring on or after November 27,2005, is denied, and the order entered May 18, 2010, is modified accordingly; and it is further,
Ordered that the appeal from the order dated August 23, 2010, is dismissed; and it is further,
Ordered that one bill of costs is awarded to the defendants Ray S. Naghavi, M.D. and R.S.Naghavi, M.D., PLLC, payable by the plaintiff.
The appeal from the intermediate order entered May 18, 2010, must be dismissed because theright of direct appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from that orderare brought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
The appeal from the order dated August 23, 2010, also must be dismissed. It is the obligationof the appellant to assemble a proper record on appeal (see LaSalle Bank N.A. v Henderson, 69 AD3d 679 [2010]; Wen Zong Yu v Hua Fan, 65 AD3d1335 [2009]; Cohen v Wallace &Minchenberg, 39 AD3d 689 [2007]). That record "must contain all of the relevantpapers that were before the Supreme Court" (LaSalle Bank N.A. v Henderson, 69 AD3dat 680 [internal quotation marks omitted]; see CPLR 5526; Wen Zong Yu v HuaFan, 65 AD3d at 1335). Here, the plaintiffs appeal from the order granting reargument andadhering to the original determination, but they have not included in the record any of the paperssubmitted on the reargument motion. Inasmuch as the record is inadequate to review the ordermade upon reargument, we dismiss the appeal from that order (see LaSalle Bank N.A. v Henderson,69 AD3d 679 [2010]; Wen Zong Yu v Hua Fan, 65 AD3d at 1335).
In July 2005, the plaintiff John Udell (hereinafter the plaintiff), who was then 50 years old,was examined by the defendant Joseph Crimi, P.A., a physician's assistant, at the offices of thedefendant R.S. Naghavi, M.D., PLLC. Blood tests revealed a prostate specific antigen(hereinafter PSA) level of 3.84 and a rectal examination was negative. The plaintiff returned tothe office again in May 2006 because of lumbar spine symptoms and was examined by thedefendant Ray S. Naghavi. No blood test to determine the plaintiff's PSA level was done at thattime and no rectal examination was performed. However, blood work was done on May 10,2006, and Crimi allegedly reviewed the laboratory report that was prepared on May 11, 2006. In2007, another physician diagnosed the plaintiff with advanced prostate cancer and, on May 27,2008, the plaintiff and his wife, suing derivatively, commenced this action against Naghavi andhis professional corporation (hereinafter together the Naghavi defendants), and Crimi to recoverdamages, inter alia, for medical malpractice. The plaintiffs alleged, among other things, thatNaghavi and Crimi committed malpractice in failing to order follow-up tests to ascertain theplaintiff's PSA level. Crimi moved for summary judgment dismissing the complaint insofar asasserted against him. The Naghavi defendants separately moved for summary judgmentdismissing the complaint insofar as asserted against them for acts or omissions occurring prior toNovember 27, 2005, as barred by the statute of limitations. The Supreme Court granted themotions.
With respect to those branches of the defendants' separate motions that were based on thestatute of limitations, the defendants established, prima facie, that the action was commenced onMay 27, 2008, and, therefore, all causes of action to recover damages for malpractice arisingfrom acts or omissions occurring prior to November 27, 2005, were barred by the 2½-yearstatute of limitations (see CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d904, 906 [1996]; Chambers vMirkinson, 68 AD3d 702, 704 [2009]). The burden thus shifted to the plaintiffs todemonstrate the existence of a triable issue of fact (see Cox v Kingsboro Med. Group, 88NY2d at 906).
Generally, a cause of action alleging medical malpractice accrues on the date of the allegedwrongful act or omission, and the statute of limitations begins running on that date. In instances,however, when the patient is undergoing a "continuous course of treatment" with the physicianwith respect to the same condition or complaint that gives rise to the lawsuit, the statute oflimitations will not begin to run until the end of the course of treatment (Nykorchuck vHenriques, 78 NY2d 255, 261 [1991]; see Gomez v Katz, 61 AD3d 108, 111 [2009]). Here, the plaintiffsfailed to demonstrate [*3]that there was a triable issue of fact asto whether the continuous treatment doctrine tolled the statute of limitations. In order to receivethe benefit of that doctrine, a plaintiff is required to demonstrate that there was a course oftreatment, that it was continuous, and the treatment was for the condition or complaintunderlying the claim of malpractice (see McDermott v Torre, 56 NY2d 399, 406-407[1982]; Gomez v Katz, 61 AD3d at 111-112). In the absence of continuing efforts by adoctor to treat a particular condition, the policy underlying the continuous treatment doctrinedoes not justify tolling the statute of limitations.
Here, the record established that plaintiff and the defendants had a continuing doctor-patientrelationship, but the plaintiffs failed to raise a triable issue of fact as to whether it concernedongoing efforts to treat the condition that eventually was eventually diagnosed as prostate cancer(see Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338 [1997];Richardson v Orentreich, 64 NY2d 896, 899 [1985]; Chambers v Mirkinson, 68 AD3d 702 [2009]; Gomez vKatz, 61 AD3d at 112). Accordingly, the Supreme Court properly granted those branches ofthe defendants' motions which were for summary judgment dismissing the complaint insofar as italleged acts or omissions of malpractice occurring prior to November 27, 2005.
The Supreme Court erred, however, in granting that branch of Crimi's motion which was forsummary judgment dismissing the causes of action asserted against him which were based uponhis alleged acts or omissions occurring on or after November 27, 2005. Although Crimiestablished his prima facie entitlement to judgment as a matter of law through the submission ofhis own deposition testimony and his expert's affidavit, which opined that Crimi did not deviatefrom good and accepted standards of medical care during the treatment he rendered to theplaintiff (see Swezey v Montague Rehab& Pain Mgt., P.C., 59 AD3d 431, 433 [2009]), the affidavit of the plaintiffs' expert,submitted in opposition to Crimi's motion, raised a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324-325 [1986]; Stukas v Streiter,— AD3d—, 2011 NY Slip Op 01832 [2d Dept 2011]).
The plaintiffs' remaining contentions are either academic or without merit. Rivera, J.P.,Balkin, Leventhal and Hall, JJ., concur.