| Adams v Kohan |
| 2013 NY Slip Op 02525 [105 AD3d 880] |
| April 17, 2013 |
| Appellate Division, Second Department |
| George Adams, Appellant, v Alfred Kohan et al.,Respondents. |
—[*1] Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y.(James M. Furey, Jr., of counsel), for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals, as limited by his brief, from so much of an order of theSupreme Court, Nassau County (Mahon, J.), entered September 20, 2011, as, uponrenewal, granted those branches of the defendants' motion which were to vacate its priororder dated July 27, 2010, denying the defendants' motion for summary judgmentdismissing the complaint as time-barred, and thereupon grant the defendants' motion forsummary judgment dismissing the complaint as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants made a prima facie showing of entitlement to judgment as a matter oflaw by demonstrating, through the submission of, inter alia, the plaintiff's bill ofparticulars, that the action was not commenced until after the expiration of thetwo-year-and-six-month statute of limitations applicable to medical malpractice actions(see CPLR 214-a; Gomez v Katz, 61 AD3d 108, 113 [2009]). In opposition,the plaintiff failed to raise a triable issue of fact as to whether the statute of limitationswas tolled under the continuous treatment doctrine (see Cox v Kingsboro Med.Group, 88 NY2d 904, 906 [1996]). The two phone calls between the plaintiff andthe defendant physician, Alfred Kohan, did not demonstrate that the plaintiff wasundergoing an actual course of treatment from Kohan, or that the plaintiff and Kohancontemplated future treatment (see Gomez v Katz, 61 AD3d at 112-113). Rather,the evidence established that by the time of these calls the plaintiff was being treated forhis medical condition, and the infection that allegedly arose from Kohan's treatment ofthe plaintiff's medical condition, by another physician.
Accordingly, upon renewal, the Supreme Court properly granted the defendants'motion for summary judgment dismissing the complaint as time-barred. Mastro, J.P.,Chambers, Hall and Lott, JJ., concur.