| Wei Wei v Westside Women's Med. Pavilion, P.C. |
| 2014 NY Slip Op 01448 [115 AD3d 662] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Wei Wei, Respondent, v Westside Women'sMedical Pavilion, P.C., et al., Appellants. |
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In an action to recover damages for medical malpractice, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County(Bunyan, J.), dated October 10, 2012, as denied that branch of their motion which waspursuant to CPLR 3211 (a) (5) to dismiss the complaint as barred by the applicablestatute of limitations.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) todismiss the complaint as barred by the applicable statute of limitations is granted.
A party moving pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred bythe applicable statute of limitations must establish, prima facie, that the period in whichto commence the action has expired (see QK Healthcare, Inc. v InSource, Inc., 108 AD3d 56, 65[2013]; Baptiste vHarding-Marin, 88 AD3d 752, 753 [2011]). The burden then shifts to thenonmoving party to raise an issue of fact as to the applicability of an exception to thestatute of limitations, as to whether the statute of limitations was tolled, or as to whetherthe action was actually commenced within the applicable limitations period (see Singh v New York City Health& Hosps. Corp. [Bellevue Hosp. Ctr. & Queens Hosp. Ctr.], 107 AD3d 780,781 [2013]; Baptiste v Harding-Marin, 88 AD3d at 753; Williams v New York City Health& Hosps. Corp., 84 AD3d 1358, 1359 [2011]).
Here, the defendants established that the last time they treated the plaintiff was onApril 7, 2009, at which time the plaintiff was referred to the emergency room at St.Luke's Roosevelt Hospital for evaluation. Therefore, the defendants demonstrated, primafacie, that the applicable 2½-year limitations period (see CPLR 214-a)expired on October 7, 2011, and that this action was untimely commenced on October19, 2011.
In opposition, the plaintiff failed to raise an issue of fact as to whether the continuoustreatment doctrine applied to toll the statute of limitations. Although the plaintiff assertedthat the defendants suggested that she make a follow-up appointment in the future, theplaintiff never scheduled an appointment with the defendants following her final visitwith them on April 7, 2009 (seeCapece v Nash, 70 AD3d 743, 745 [2010]; Elrington v Staub, 29 AD3d 939 [2006]; Zelig v Urken, 28 AD3d318 [2006]; Levinson v Etra, 306 AD2d 250, 251 [2003]; Bellmund vBeth Israel Hosp., 131 AD2d 796, 798 [1987]). The plaintiff has not shown that shesought, and in fact obtained, an actual course of treatment from the [*2]defendants after this date (see Petito v Roberts, 113AD3d 743, 743 [2014]). Accordingly, the Supreme Court should have granted thatbranch of the defendants' motion which was pursuant to CPLR 3211 (a) (5) to dismissthe complaint as barred by the applicable statute of limitations. Rivera, J.P., Lott, Romanand Hinds-Radix, JJ., concur.