| Marrero v Sosinsky |
| 2015 NY Slip Op 06222 [130 AD3d 883] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| William Marrero et al., Appellants, v JeffreySosinsky, M.D., Respondent. |
Howard M. File, P.C., Staten Island, N.Y. (Martin Rubenstein of counsel), forappellants.
Vaslas Lepowsky Hauss & Danke LLP, Staten Island, N.Y. (Neil F. Schrefflerof counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the plaintiffs appeal from an order of the Supreme Court, RichmondCounty (Fusco, J.), dated December 3, 2013, which granted the defendant's motionpursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much of the complaint aswas based upon alleged acts of medical malpractice and lack of informed consentcommitted prior to June 4, 2006.
Ordered that the order is affirmed, with costs.
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 June 4, 2006, was time-barred, through submission of the summons andcomplaint, which demonstrated that this action was not commenced until December 4,2008 (see CPLR 214-a;Peykarian v Yin Chu Chien, 109 AD3d 806, 807 [2013]). Thus, the burdenshifted to the plaintiff to raise a question of fact as to whether the statute of limitationswas tolled or was otherwise inapplicable, or whether he actually commenced the actionwithin the applicable limitations period (see Baptiste v Harding-Marin, 88 AD3d 752, 753 [2011];Williams v New York CityHealth & Hosps. Corp., 84 AD3d 1358 [2011]; Rakusin v Miano, 84 AD3d1051, 1052 [2011]). Although the plaintiff contended that the statute of limitationswas tolled by the continuous treatment doctrine, he failed to raise a question of fact inthat regard (see Massie v Crawford, 78 NY2d 516, 519 [1991]; Nykorchuck vHenriques, 78 NY2d 255, 258 [1991]). Accordingly, the Supreme Court properlygranted the defendant's motion to dismiss, as time-barred, so much of the complaint aswas based upon alleged acts of medical malpractice and lack of informed consentcommitted prior to June 4, 2006. Skelos, J.P., Dillon, Duffy and LaSalle, JJ., concur.