| Schwelnus v Urological Assoc. of L.I., P.C. |
| 2012 NY Slip Op 02858 [94 AD3d 971] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Robert W. Schwelnus, Respondent, v UrologicalAssociates of L.I., P.C., et al., Appellants. |
—[*1] Michael J. Krakower, Great Neck, N.Y., for respondent.
In an action to recover damages for medical malpractice, the defendants appeal from an orderof the Supreme Court, Suffolk County (Jones, Jr., J.), dated May 31, 2011, which denied theirmotion for leave to renew their motion for summary judgment dismissing the complaint, whichhad been denied in an order of the same court dated January 6, 2011.
Ordered that the order dated May 31, 2011, is reversed, on the law and in the exercise ofdiscretion, with costs, the motion by the defendants for leave to renew their motion for summaryjudgment dismissing the complaint is granted and, upon renewal, the order dated January 6,2011, is vacated, and the motion for summary judgment dismissing the complaint is granted.
The plaintiff alleges that the defendant physician Richard V. Musto failed to completely reada pathology report which was positive for prostate cancer in September 2004, and, as such,informed the plaintiff that the test results were negative for signs of prostate cancer. The failureto diagnose the plaintiff's prostate cancer allegedly reduced the plaintiff's chances of successfulrecovery. The defendants moved for summary judgment dismissing the complaint on the groundthat the plaintiff's claims were time-barred pursuant to CPLR 214-a. The Supreme Court deniedthe motion, inter alia, because the deposition transcripts relied upon were unsigned. Upon theirmotion for leave to renew, the defendants submitted, among other things, properly executedtranscripts and alleged, inter alia, that the failure to submit the transcripts in admissible form wasa result of law office failure. The Supreme Court denied leave to renew on the ground that thedefendants had failed to present any new facts or change in the law that would have changed thecourt's determination.
The Supreme Court improvidently exercised its discretion in denying the defendants' motionfor leave to renew their motion for summary judgment dismissing the complaint on the groundthat the defendants' motion was not based upon new facts not offered on the prior motion. CPLR2221 (e) has not been construed so narrowly as to disqualify, as new facts not offered on the priormotion, facts contained in a document originally rejected for consideration because the documentwas not in admissible form (seeSimpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; [*2]see also Coccia v Liotti, 70 AD3d 747 [2010]; Arkin v Resnick, 68 AD3d 692[2009]). The defendants corrected their inadvertent procedural errors with respect to thetranscripts and provided a reasonable justification for failing to present the transcripts inadmissible form in support of their motion for summary judgment such that leave to renewshould have been granted (see Darwickv Paternoster, 56 AD3d 714 [2008]; DeLeonardis v Brown, 15 AD3d 525 [2005]).
Upon renewal, the defendants' motion for summary judgment should have been granted. Acause of action alleging medical malpractice accrues on the date of the alleged wrongful act oromission, and, thus, the statute of limitations begins to run on that date (see Udell v Naghavi, 82 AD3d960 [2011]). The date of filing of the summons and verified complaint establishes that theinstant action was not commenced until June 30, 2008, which was well beyond thetwo-year-and-six-month statute of limitations applicable to medical malpractice actions (seeCPLR 214-a). Thus, the defendants satisfied their prima facie burden on summary judgmentof establishing that the plaintiff commenced this action after the expiration of the applicablelimitations period.
Consequently, the burden shifted to the plaintiff to present evidence raising a triable issue offact as to whether the continuous treatment doctrine served herein to toll the limitations period(see Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]). The continuous treatmentdoctrine tolls the statute of limitations for a medical malpractice action when, inter alia, theplaintiff demonstrates that he or she continued to seek, and in fact obtained from the defendantphysician during the relevant period, an actual course of treatment, denoted by affirmative andongoing conduct by the physician such as surgery, therapy, or the prescription of medications (see Gomez v Katz, 61 AD3d 108,111-112 [2009]). Continuing efforts to arrive at a diagnosis fall short of a course of treatment, asdoes a physician's failure to properly diagnose a condition that prevents treatment altogether(id. at 112). In addition, the course of treatment provided by the physician must becontinuous (id.), and must be for the same conditions or complaints underlying theplaintiff's medical malpractice claim (see Nykorchuck v Henriques, 78 NY2d 255 [1991];Borgia v City of New York, 12 NY2d 151 [1962]).
Here, the plaintiff alleged that Musto departed from good and accepted standards of medicalpractice by failing to read the entire pathology report on September 15, 2004, and that this failureresulted in Musto not diagnosing the plaintiff's prostate cancer and not providing or suggestingany treatment for the plaintiff's prostate cancer. Musto's nondiagnosis and resultant nontreatmentcannot be considered a course of treatment (see Gomez v Katz, 61 AD3d 108 [2009]). Furthermore, theplaintiff's reason for initially presenting to Musto on June 25, 2004, which led to the September2004 biopsy at issue, was different from the reason that he treated with Musto thereafter. Thus,the plaintiff failed to raise a triable issue of fact as to whether the continuous treatment doctrineapplied herein so as to toll the applicable statute of limitations period.
Accordingly, upon renewal, the order dated January 6, 2011, should have been vacated andthe defendants' motion for summary judgment dismissing the complaint should have beengranted. Florio, J.P., Lott, Sgroi and Miller, JJ., concur.