ZAJAC v. WILSON (2006)

Plaintiffs commenced this action to recover damages for injuries allegedly sustained by James Zajac (plaintiff) as the result of the alleged medical malpractice and negligence of Dr. E. Robert Wilson (defendant) in conducting a series of independent medical examinations (IMEs).   In a prior order, Supreme Court granted those parts of defendants' motion seeking summary judgment dismissing the negligence cause of action and part of the medical malpractice cause of action, and that order was affirmed on appeal (Zajac v. Wilson, 2 A.D.3d 1410, 768 N.Y.S.2d 889, lv. dismissed 5 N.Y.3d 873, 808 N.Y.S.2d 136, 842 N.E.2d 21).

 The court properly granted defendants' motion seeking summary judgment dismissing the remainder of the complaint on the ground that the part of the medical malpractice cause of action surviving the prior motion is time-barred.   Defendants met their initial burden on the motion by demonstrating that plaintiffs commenced the action more than 2 1/212 years after the alleged malpractice (see Waring v. Kingston Diagnostic Radiology Ctr., 13 A.D.3d 1024, 1025, 786 N.Y.S.2d 832;  Couzens v. Augustine, 305 A.D.2d 1012, 1013, 758 N.Y.S.2d 579).   The burden then shifted to plaintiffs to raise a triable issue of fact with respect to the applicability of the continuous treatment doctrine (see Waring, 13 A.D.3d at 1025, 786 N.Y.S.2d 832).   Plaintiffs failed to meet that burden.  “[E]ssential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit” (Nykorchuck v. Henriques, 78 N.Y.2d 255, 258-259, 573 N.Y.S.2d 434, 577 N.E.2d 1026).   The record establishes that defendant conducted IMEs on behalf of the workers' compensation insurance carriers that provided coverage to plaintiff's employer for plaintiff's job-related back injuries, but provided no course of treatment for those injuries.  “In the absence of continuing efforts by a doctor to treat a particular condition, none of the policy reasons underlying the continuous treatment doctrine justify [plaintiffs'] delay in bringing suit” (Nykorchuck, 78 N.Y.2d at 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026).   Finally, contrary to plaintiffs' contention, defendants showed “good cause” for their delay in filing the motion, and thus the court properly exercised its discretion in entertaining the motion on the merits (CPLR 3212[a];  see Kunz v. Gleeson, 9 A.D.3d 480, 481, 781 N.Y.S.2d 50).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: