DUFFY v. Dr. Allan J. Jacobs, Defendant. (2008)

Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered October 13, 2006, which, to the extent appealed from, granted the Vogel defendants' motion for summary judgment as to all medical malpractice claims arising from treatment prior to March 24, 2000, unanimously affirmed, without costs.

Plaintiff failed to satisfy her burden of demonstrating the existence of triable issues of fact as to the applicability of the continuous treatment doctrine to toll the statute of limitations (Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 646 N.Y.S.2d 659, 669 N.E.2d 817 [1996] ) with respect to her malpractice claims against the Vogel defendants arising before her last visit to Dr. Vogel on March 24, 2000.   Neither the continuing relationship between physician and patient nor the continuing nature of a diagnosis is sufficient to satisfy that burden (see Ganess v. City of New York, 85 N.Y.2d 733, 628 N.Y.S.2d 242, 651 N.E.2d 1261 [1995];  Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991] ).   Plaintiff conceded that Dr. Vogel never told her during any office visit to schedule another appointment, and her visits to him were few and far between, failing to establish continuity and initiation of a timely return related to the initial problem (Curcio v. Ippolito, 63 N.Y.2d 967, 483 N.Y.S.2d 989, 473 N.E.2d 239 [1984];  see also Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 670 N.Y.S.2d 169, 693 N.E.2d 196 [1998] ).