Muscat v Mid-Hudson Med. Group, P.C.

2016 NY Slip Op 00484 [135 AD3d 915]

January 27, 2016

Appellate Division, Second Department

As corrected through Wednesday, March 4, 2015

[*1]

Richard Muscat, Respondent, v Mid-HudsonMedical Group, P.C., Appellant, et al., Defendants.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, NY(Christopher P. Keenan and Timothy M. Smith of counsel), for appellant.

Wisell & McGee, LLP, Kew Gardens, NY (John T. Wisell of counsel), forrespondent.

In an action, inter alia, to recover damages for medical malpractice, the defendantMid-Hudson Medical Group, P.C., appeals, as limited by its brief, from so much of anorder of the Supreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, asdenied its motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar asasserted against it as time-barred.

Ordered that the order is affirmed insofar as appealed from, with costs.

According to the plaintiff, in March 2009, he sought treatment from the defendantSpyros Panos, a physician employed by the defendant Mid-Hudson Medical Group, P.C.(hereinafter Mid-Hudson), after injuring his right shoulder. On April 21, 2009, Panosperformed surgery on the plaintiff's right shoulder at the defendant Hudson Valley Centerat Saint Francis (hereinafter Hudson Valley). On November 10, 2011, the plaintiffcommenced this action against Panos, Mid-Hudson, and Hudson Valley, inter alia, torecover damages for medical malpractice. Mid-Hudson moved pursuant to CPLR 3211(a) (5) to dismiss the complaint insofar as asserted against it as time-barred. The SupremeCourt denied the motion.

" 'A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a) (5) on the ground that it is barred by the statute of limitations bears the initial burdenof proving, prima facie, that the time in which to sue has expired' " (LaRocca v DeRicco, 39 AD3d486, 486-487 [2007], quoting Gravel v Cicola, 297 AD2d 620, 620 [2002]).Here, in moving to dismiss the complaint insofar as asserted against it, Mid-Hudsonmade a prima facie showing that the medical malpractice causes of action insofar asasserted against it were time-barred under the 21/2-year statute oflimitations applicable to medical malpractice causes of action (CPLR 214-a), inasmuchas the complaint demonstrates that more than two years and six months had elapsedbetween the date of the surgery and the commencement of this action. "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" (Marrero v Sosinsky, 130 AD3d 883, 883 [2015]; see Ceglio v BAB NuclearRadiology, P.C., 120 AD3d 1376, 1377 [2014]). In opposition [*2]to Mid-Hudson's motion, the plaintiff argued that while the21/2-year statute of limitations applicable to the medical malpractice claimselapsed, the limitations period was tolled by the continuous treatment doctrine (seeCPLR 214-a). He further asserted that in addition to medical malpractice allegations,his complaint included timely allegations against Mid-Hudson sounding in ordinarynegligence, which are governed by a three-year statute of limitations (CPLR 214[5]).

Contrary to Mid-Hudson's contention, the plaintiff raised a question of fact as towhether the statute of limitations on the medical malpractice causes of action was tolledby the continuous treatment doctrine. The plaintiff submitted medical records evincingthat he underwent a continuous course of treatment with Panos for the same conditionunderlying the medical malpractice causes of action that remained ongoing untilSeptember 2009, which was within two years and six months of the commencement ofthis action (see CPLR 214-a; see generally Gomez v Katz, 61 AD3d 108, 111-113[2009]). We note that "[i]ncluded within the scope of 'continuous treatment' is a timelyreturn visit instigated by the patient to complain about and seek treatment for a matterrelated to the initial treatment" (McDermott v Torre, 56 NY2d 399, 406[1982]).

We also note that to the extent the complaint includes viable causes of action againstMid-Hudson sounding in ordinary negligence, the continuous treatment doctrine is notapplicable to those claims (see Bleiler v Bodnar, 65 NY2d 65, 73 [1985]; Schrank v Lederman, 52 AD3d494, 496 [2008]; Teitell v County of Westchester, 277 AD2d 309, 310[2000]). However, those causes of action would nevertheless be timely in that they wouldbe subject to a three-year limitations period (see CPLR 214 [5]), and less thanthree years elapsed between the date of the surgery and the commencement of this action.Therefore, the Supreme Court properly denied Mid-Hudson's motion to dismiss thecomplaint insofar as asserted against it as time-barred. Dillon, J.P., Dickerson, Miller andDuffy, JJ., concur.