| Vodos v Coopersmith |
| 2011 NY Slip Op 05263 [85 AD3d 909] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Rae Vodos et al., Respondents, v Harvey Coopersmith etal., Appellants, et al., Defendants. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, White Plains, N.Y. (Daniel S. Ratner and DarylPaxson of counsel), for appellant Mark Schwartz. Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), forrespondents.
In an action to recover damages for medical malpractice and lack of informed consent, etc.,the defendants Harvey Coopersmith and Radiology Associates of Brooklyn, LLP, appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Jackson,J.), dated February 4, 2010, as denied their motion for summary judgment dismissing thecomplaint insofar as asserted against them, and the defendant Mark Schwartz separately appeals,as limited by his brief, from so much of the same order as denied that branch of his separatemotion, made jointly with the defendant Eugene J. Nowak, which was for summary judgmentdismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable bythe appellants appearing separately and filing separate briefs.
The defendants Harvey Coopersmith and Radiology Associates, LLP (hereinafter togetherthe Radiology defendants), met their prima facie burden of establishing that they were entitled tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Stukas v Streiter, 83 AD3d 18[2011]), by demonstrating that any allegations of medical malpractice based upon acts that theycommitted prior to July 30, 2003, were time-barred (see CPLR 214-a). However, inopposition, the plaintiffs raised a triable issue of fact as to whether the statute of limitations wastolled by the continuous treatment doctrine (see Gomez v Katz, 61 AD3d 108, 111 [2009]; Texeria v BAB Nuclear Radiology,P.C., 54 AD3d 1022 [2008]; Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d895, 896 [2006]). Accordingly, the Supreme Court properly denied that branch of theRadiology defendants' motion which was for summary judgment dismissing, as time-barred, somuch of the complaint as was based upon their alleged acts of medical malpractice committedprior to July 30, 2003, insofar as asserted against them. Moreover, the Supreme Court properlydenied that branch of the Radiology defendants' motion which was for summary judgmentdismissing so much of the complaint as was based upon their alleged acts of medical malpracticecommitted [*2]on or after July 30, 2003, insofar as assertedagainst them. Although those defendants established their prima facie entitlement to judgment asa matter of law through the submission of, inter alia, their expert's affidavit, which opined thatthey met the requirements of the standards of good and acceptable medical care in theirinterpretation of the injured plaintiff's mammograms and sonograms, the affidavits of theplaintiffs' experts submitted in opposition raised a triable issue of fact as to whether theRadiology defendants' conduct constituted medical malpractice (see Stukas v Streiter, 83 AD3d 18[2011]).
The Supreme Court also properly denied that branch of the motion of the defendant MarkSchwartz, made jointly with the defendant Eugene J. Novak, which was for summary judgmentdismissing the complaint insofar as asserted against Schwartz. Schwartz met his prima facieburden of establishing that he was entitled to judgment as a matter of law by submitting evidencethat he did not deviate or depart from accepted medical practice in the treatment of the injuredplaintiff and did not fail to obtain the injured plaintiff's informed consent for that treatment (see Ortaglia v Scanlon, 35 AD3d421 [2006]; Ericson vPalleschi, 23 AD3d 608, 610 [2005]). However, in opposition, the plaintiffs raisedtriable issues of fact as to whether Schwartz deviated or departed from accepted medical practiceand as to whether the injured plaintiff gave her informed consent (see generally Stukas v Streiter, 83AD3d 18 [2011]). Covello, J.P., Leventhal, Lott and Miller, JJ., concur.