ESTRELLA v. Ared Garan, M.D., et al., Defendants (2021)

Order, Supreme Court, Bronx County (George J. Silver), entered March 18, 2020, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Montefiore Medical Center (Montefiore) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Supreme Court properly dismissed plaintiff's action against Montefiore on the ground that her claims based on her October 4, 2012 emergency room visit, during which a lesion on her liver was detected during a CT scan, are barred by the 21/212-year statute of limitations (see CPLR 214–a;  Wilson v. Southampton Urgent Med. Care, P.C., 112 A.D.3d 499, 499, 977 N.Y.S.2d 224 [1st Dept. 2013] ).  The continuous treatment doctrine did not operate to toll the statute of limitations because plaintiff's return to the emergency room on February 24, 2015, at which time she was diagnosed with hepatocellular carcinoma, did not constitute a “course of treatment” (Massie v. Crawford, 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935 [1991];  see Lewis v. Treitel, 157 A.D.3d 452, 66 N.Y.S.3d 135 [1st Dept. 2018] ).  Plaintiff never returned to Montefiore between these two emergency room visits in 2012 and 2015 to seek further treatment for her abdominal pain, nor did she provide evidence of an “ongoing relationship of trust and confidence” with Montefiore (Devadas v. Niksarli, 120 A.D.3d 1000, 1006, 992 N.Y.S.2d 197 [1st Dept. 2014] [internal quotation marks omitted] ).  Accordingly, her return to Montefiore in 2015 “constituted a resumption of treatment rather than a continuation thereof,” insufficient to toll the statute of limitations (see Fox v. Glens Falls Hosp., 129 A.D.2d 955, 957, 515 N.Y.S.2d 118 [3d Dept. 1987] [internal quotation marks omitted] ).

Plaintiff's remaining argument is moot given that on appeal she does not challenge the dismissal of her claims against defendant Ared Garan, M.D., as time-barred.  In any event, there is no evidence in the record to establish the requisite nexus between Dr. Garan and Montefiore to impute his treatment of plaintiff for the purpose of extending the statute of limitations against Montefiore (see Meath v. Mishrick, 68 N.Y.2d 992, 994, 510 N.Y.S.2d 560, 503 N.E.2d 115 [1986] ).