| Salerno v Huntington Hosp. Dolan Family Health Ctr., Inc. |
| 2012 NY Slip Op 06069 [98 AD3d 730] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Frank Salerno, Respondent, v Huntington Hospital DolanFamily Health Center, Inc., Appellant. |
—[*1] Castro & Trodden, LLC, Smithtown, N.Y. (Brian A. Trodden of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.),dated September 14, 2009, as denied its motion for summary judgment dismissing the complaintas time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant, Huntington Hospital Dolan Family Health Center, Inc., owns and operatesboth Huntington Hospital (hereinafter the hospital) in Huntington and Dolan Family HealthCenter (hereinafter the Dolan Center) in Greenlawn. On December 29, 2002, the plaintiff'sdecedent (hereinafter the decedent) sought treatment in the emergency room of the hospital. Shewas erroneously diagnosed with a urinary tract infection and discharged. Later that day, hospitalpersonnel realized that the decedent needed to return to the hospital for emergency surgicalintervention to repair a perforated colon caused by diverticulitis. As part of the surgical repair, acolostomy was performed. The decedent was discharged from the hospital on January 18, 2003.
During the summer of 2003, the decedent returned to the hospital to see the surgeon whoperformed her surgery, with respect to having the colostomy reversed. She was directed by thehospital staff to see the surgeon at his private office, and was provided with the surgeon'saddress. The decedent met with the surgeon on November 18, 2003. She met with him again onJanuary 6, 2004, when he wrote a prescription for the decedent to go to the Dolan Center forreferral to a gastroenterologist to perform a colonoscopy prior to reversal of the colostomy, whichwas to be performed at the hospital. On March 3, 2004, the decedent was examined at the DolanCenter, and an appointment was scheduled for her on May 4, 2004, at its gastroenterology clinicwith respect to the colonoscopy. The decedent failed to keep the appointment scheduled for May4, 2004, and did not have her colostomy reversed before she died in 2011.
On July 21, 2006, the decedent commenced this action against the defendant alleging, interalia, that it committed medical malpractice in misdiagnosing her condition of diverticulitis,which led to emergency colon surgery and subsequent hospitalization. The defendant moved forsummary judgment dismissing the complaint on the ground that this action was time-barred. Inopposing the motion, the decedent argued that the continuous treatment doctrine tolled the [*2]applicable statute of limitations. The Supreme Court denied thedefendant's motion.
The defendant established its prima facie entitlement to judgment as a matter of lawdismissing the complaint as time-barred by demonstrating that this action was commenced afterthe expiration of the 2½-year limitations period applicable to medical malpractice claims(see CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996];Rizk v Cohen, 73 NY2d 98, 102 [1989]; Capece v Nash, 70 AD3d 743, 745 [2010]; Chambers v Mirkinson, 68 AD3d702, 704 [2009]). In opposition, the decedent raised a triable issue of fact as to whether thetreatment she received from the defendant was "continuous," whether the treatment she receivedat the Dolan Center on March 3, 2004, was related to her original condition because thecolostomy, which the decedent sought to have reversed, was an integral part of the emergencysurgical procedure, and whether the further treatment was "explicitly anticipated" by the partiesby virtue of the surgeon's recommendation that, upon the decedent's discharge from the hospital,she would have to wait 6 to 12 months before returning to the hospital to reverse the colostomy(see Nykorchuck v Henriques, 78 NY2d 255, 258 [1991]; Richardson vOrentreich, 64 NY2d 896, 898-899 [1985]; Gomez v Katz, 61 AD3d 108, 111-112 [2009]; Langsam v Terraciano, 22 AD3d414, 415 [2005]). Further, the decedent raised a triable issue of fact as to whether membersof the Dolan Center staff were agents of the hospital by submitting an affidavit of anadministrator of the Dolan Center, which had been obtained in response to the plaintiff'sdiscovery requests, stating that the Dolan Center was "a wholly owned subsidiary" of the hospitaland that all of the staff members of the Dolan Center were employees of the hospital, as they hadbeen hired through and credentialed by the hospital. Moreover, the affidavit explained that theDolan Center and the hospital "shared the same billing system, information system and masterpatient index" (see e.g. Allende v New York City Health & Hosps. Corp., 90 NY2d 333,339-340 [1997]).
The defendant's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendant's motion for summaryjudgment dismissing the complaint as time-barred. Skelos, J.P., Dickerson, Austin and Roman,JJ., concur.