| Petito v Roberts |
| 2014 NY Slip Op 00334 [113 AD3d 743] |
| January 22, 2014 |
| Appellate Division, Second Department |
| Rocco Petito et al., Appellants, v Stephen Roberts,M.D., Respondent, et al., Defendant. |
—[*1] Vaslas Lepowsky Hauss & Danke, LLP (Kaufman Borgeest & Ryan LLP, Valhalla,N.Y. [Adonaid C. Medina and Edward J. Guardaro, Jr.], of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Richmond County(Maltese, J.), dated January 26, 2012, as granted that branch of the motion of thedefendant Stephen Roberts which was pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted that branch of the motion of the defendantStephen Roberts which was pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against him. An action alleging medical malpractice "must becommenced within two years and six months of the act, omission or failure complainedof or last treatment where there is continuous treatment for the same illness, injury orcondition which gave rise to the said act, omission or failure" (CPLR 214-a).
Here, in support of his motion, Roberts established that the last time he treated theinjured plaintiff was on May 17, 2005, when he referred the injured plaintiff to aurologist. The statute of limitations therefore expired on November 17, 2007, and thisaction was untimely commenced on March 14, 2008. The burden then shifted to theplaintiffs to raise an issue of fact as to whether this action was timely commenced(see Massie v Crawford, 78 NY2d 516, 519 [1991]; Matteawan On Main, Inc. v City ofBeacon, 109 AD3d 590 [2013]; Rakusin v Miano, 84 AD3d 1051 [2011]).
The plaintiffs failed to raise an issue of fact as to whether the continuous treatmentdoctrine applies to toll the statute of limitations. The purpose of the continuous treatmentdoctrine is to ameliorate the harshness of a rule which ties accrual of a malpractice actionto the date of the offending act, creating a dilemma for the patient, who must choosebetween silently accepting continued corrective treatment from the offending physician,with the risk that his claim will be time-barred, or promptly instituting an action, with therisk that the physician-patient relationship [*2]will bedestroyed (see Rizk v Cohen, 73 NY2d 98, 104 [1989]). Thus, the continuoustreatment doctrine applies when further treatment is explicitly anticipated by bothphysician and patient, as manifested in the form of a regularly scheduled appointment forthe near future, agreed upon during that last visit, which is for the purpose ofadministering ongoing corrective efforts for the same or a related condition (seeRichardson v Orentreich, 64 NY2d 896, 898-899 [1985]; Schrank v Lederman, 52 AD3d494 [2008]). "Included within the scope of 'continuous treatment' is a timely returnvisit instigated by the patient to complain about and seek treatment for a matter related tothe initial treatment" (McDermott v Torre, 56 NY2d 399, 406 [1982]).
Here, the plaintiffs have not shown that the injured plaintiff continued to seek, and infact obtained, an actual course of treatment from Roberts during the relevant period (see Gomez v Katz, 61 AD3d108, 111-112 [2009]). There was simply no further plan for care or treatment onceRoberts referred the injured plaintiff to a urologist on May 17, 2005. The failure toestablish a course of treatment cannot itself constitute a "course of treatment" for thepurpose of tolling the statute of limitations (see Nykorchuck v Henriques, 78NY2d 255, 259-260 [1991]; seealso Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 8-9 [2007];Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296-297[1998]). The Supreme Court therefore properly granted that branch of Roberts's motionwhich was pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst him as time-barred.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.[Prior Case History: 2012 NY Slip Op 30223(U).]