| Lake v New York Hosp. Med. Ctr. of Queens |
| 2014 NY Slip Op 05414 [119 AD3d 843] |
| July 23, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 James Lake, Appellant, v New York HospitalMedical Center of Queens et al., Respondents. |
Kelly, Grossman, & Flanagan, LLP (Sweetbaum & Sweetbaum, LakeSuccess, N.Y. [Marshall D. Sweetbaum], of counsel), for appellant.
Farley, Holohan & Glockner, LLP, Mineola, N.Y. (Robert J. Farley and DavidA. Rosen of counsel), for respondent New York Hospital Medical Center of Queens.
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia andGlenn A. Kaminska of counsel), for respondent Meadow Park Rehabilitation and HealthCare Center.
In an action to recover damages for negligence, violations of Public Health Law§ 2801-d, and medical malpractice, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Queens County (Strauss, J.), datedFebruary 13, 2013, as granted those branches of the separate motions of the defendantsNew York Hospital Medical Center of Queens and Meadow Park Rehabilitation andHealth Care Center which were pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against each of them as time-barred.
Ordered that the order is affirmed insofar as appealed from, with one bill ofcosts.
In March 2011, the plaintiff commenced an action in the Supreme Court, QueensCounty, against the defendants New York Hospital Medical Center of Queens(hereinafter NYHMC) and Meadow Park Rehabilitation and Health Care Center(hereinafter Meadow Park) alleging, inter alia, negligence and violations of PublicHealth Law § 2801-d. The only date stated in that complaint relating to thealleged misconduct was March 5, 2007. Thereafter, the Supreme Court dismissed theaction for lack of capacity to sue because the plaintiff had not received the letters ofadministration of the decedent's estate required for him to have the capacity to bring theaction. After receiving the proper letters of administration, the plaintiff commenced thisaction in August 2012, alleging, inter alia, that Meadow Park violated Public Health Law§ 2801-d and was grossly negligent, and that NYHMC committed medicalmalpractice. The complaint included dates of misconduct spanning from March 2007through January 2009. The Supreme Court granted those branches of the defendants'separate motions which were pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against each of them as time-barred.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on statute oflimitations grounds, the moving defendant must establish, prima facie, that the time inwhich to commence the action has expired" (Zaborowski v Local 74, Serv. Empls.Intl. Union, AFL-CIO, 91 [*2]AD3d 768, 768[2012]). "In considering the motion, a court must take the allegations in the complaint astrue and resolve all inferences in favor of the plaintiff" (Island ADC, Inc. v BaldassanoArchitectural Group, P.C., 49 AD3d 815, 816 [2008]). If the defendant meetsthat burden, the burden then shifts to the plaintiff to "aver evidentiary facts establishingthat the action was timely or to raise a question of fact as to whether the action wastimely" (Lessoff v 26 Ct. St.Assoc., LLC, 58 AD3d 610, 611 [2009]). The plaintiff has the burden ofestablishing that the statute of limitations has not expired, that it is tolled, or that anexception to the statute of limitations applies (see Massie v Crawford, 78 NY2d516 [1991]; see also Zaborowski v Local 74, Serv. Empls. Intl. Union, AFL-CIO,91 AD3d at 768).
Here, in opposition to the defendants' prima facie showing that the time in which tocommence this action had expired, the plaintiff failed to raise a question of fact as towhether the statute of limitations was tolled pursuant to the continuous treatmentdoctrine (see Wei Wei vWestside Women's Med. Pavilion, P.C., 115 AD3d 662, 663-664 [2014]; Fraumeni v Oakwood Dental Arts,LLC, 108 AD3d 495, 496 [2013]). Moreover, contrary to the plaintiff'scontention, the original action filed in 2011 was not filed within the applicablelimitations period. Therefore, the six-month extension of the limitations period underCPLR 205 (a) was unavailable to the plaintiff.
Since this action was commenced after the expiration of the statute of limitations, theSupreme Court properly granted those branches of the defendants' separate motionswhich were pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst each of them (see CPLR 214 [2], [5]; 214-a). Dillon, J.P., Hall, Sgroi andBarros, JJ., concur.