| Peykarian v Yin Chu Chien |
| 2013 NY Slip Op 05809 [109 AD3d 806] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Rhea Peykarian, as Executrix of Ebrahim Peykarian,Deceased, et al., Respondents, v Yin Chu Chien, M.D.,Appellant. |
—[*1] John M. Daly, Yonkers, N.Y. (Gary A. Barbanel, Mitchell L. Gittin, Eugene S. R.Pagano, and John J. Leen of counsel), for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the defendant appeals from an order of the Supreme Court, Kings County(Rosenberg, J.), dated June 27, 2011, which denied his motion pursuant to CPLR 3211(a) (5) to dismiss, as time-barred, so much of the complaint as was based upon allegedacts of medical malpractice and lack of informed consent committed prior to December22, 2006, and for summary judgment dismissing, on the merits, so much of the complaintas was based upon alleged acts of medical malpractice and lack of informed consentcommitted on or after December 22, 2006, and his alternative application to direct theplaintiffs' expert witnesses to submit to a hearing pursuant to Frye v UnitedStates (293 F 1013 [1923]) and Parker v Mobil Oil Corp. (7 NY3d 434 [2006]).
Ordered that the appeal from so much of the order as denied the application to directthe plaintiffs' expert witnesses to submit to a hearing pursuant to Frye v UnitedStates (293 F 1013 [1923]) and Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) isdismissed (see Fontana vLaRosa, 74 AD3d 1016 [2010]); and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, and thedefendant's motion pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much ofthe complaint as was based upon alleged acts of medical malpractice and lack ofinformed consent committed prior to December 22, 2006, and for summary judgmentdismissing, on the merits, so much of the complaint as was based upon alleged acts ofmedical malpractice and lack of informed consent committed on or after December 22,2006, is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The defendant made a prima facie showing that so much of the complaint as wasbased upon alleged acts of medical malpractice and lack of informed consent committedprior to December 22, 2006, was time-barred, through submission of the summons andcomplaint, which demonstrated that this action was not commenced by filing until June22, 2009 (see Baptiste vHarding-Marin, 88 AD3d 752, 753 [2011]; Rakusin v Miano, 84 AD3d 1051, 1052 [2011]). Thus, theburden shifted to the plaintiffs to raise an issue of fact as to whether the statute oflimitations was tolled or [*2]was otherwise inapplicable(see Baptiste v Harding-Marin, 88 AD3d at 753; Rakusin v Miano, 84AD3d at 1052). Although the plaintiffs contend that the statute of limitations was tolledby the continuous treatment doctrine, they failed to raise a triable issue of fact in thatregard (see Massie v Crawford, 78 NY2d 516, 519 [1991]). The plaintiffs'decedent received treatment from the defendant over a 17-year period for recurrentbladder tumors. After his initial diagnosis, in 1991, the decedent typically returned fortreatment only when he was symptomatic, experiencing hematuria. Thus, betweenDecember 1999 and April 2003, and again, from December 2004 until October 2007, thedecedent did not visit with the defendant. As a result of these temporal gaps, because thedecedent did not continue to seek a course of treatment, any continuity in treatment thathad existed was severed (see Nykorchuck v Henriques, 78 NY2d 255, 258[1991]; cf. Gomez v Katz,61 AD3d 108, 112, 117 [2009]). Accordingly, the Supreme Court should havegranted that branch of the defendant's motion which was to dismiss, as time-barred, somuch of the complaint as was based upon alleged acts of medical malpractice and lack ofinformed consent committed prior to December 22, 2006.
With respect to the allegations concerning medical malpractice occurring on or afterDecember 22, 2006, the defendant made a prima facie showing that he did not departfrom good and accepted practice, and that, in any event, any departure was not aproximate cause of the alleged injuries (see DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012]; Stukas v Streiter, 83 AD3d18, 23 [2011]). The defendant also established his prima facie entitlement tojudgment as a matter of law dismissing so much of the complaint as alleged lack ofinformed consent on or after December 22, 2006 (see Etminan v Sasson, 51 AD3d 623 [2008]). Inopposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the SupremeCourt also should have granted that branch of the defendant's motion which was forsummary judgment dismissing so much of the complaint as was based upon alleged actsof medical malpractice and lack of informed consent committed on or after December 22,2006. Skelos, J.P., Angiolillo, Leventhal and Chambers, JJ., concur.