TEXERIA v. Jatinder Singh, et al., appellants. (2007)

In an action to recover damages for medical malpractice, the defendant Alfred G. Lieffrig appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), dated July 19, 2006, as denied his motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time barred, and the defendant Jatinder Singh separately appeals, as limited by his brief, from so much of the same order as denied his separate motion pursuant to CPLR 3211(a)(5) to dismiss, as time barred, so much of the complaint insofar as asserted against him as alleged malpractice committed prior to January 1, 2003.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the plaintiff.

In or about January 2004, the plaintiff was diagnosed with an infiltrating ductal carcinoma in her right breast.   In June 2004, she underwent a modified radical mastectomy.   On July 1, 2005, the plaintiff commenced this action to recover damages for medical malpractice.   The plaintiff alleged, inter alia, that she was being monitored and treated for a recurring focal nodule in her right breast since at least December 2001, by physical examinations, mammograms, and sonograms, and that the medical malpractice allowed the condition to develop into a carcinoma, which severely limited her treatment options and shortened her life expectancy.   The defendant Alfred G. Lieffrig, a surgeon, inter alia, physically examined the plaintiff and reviewed mammograms at various times during the period between December 21, 2001, and December 23, 2003.   Further, he performed a biopsy in January 2004, and the surgery in June 2004, and examined the plaintiff after the surgery in August 2004.   The defendant Jatinder Singh, a radiologist, inter alia, interpreted mammograms of the plaintiff's right breast at various times during the period between December 5, 2001, and January 23, 2003, and sent copies of his reports to both the plaintiff and another of her physicians.

Lieffrig moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time barred, contending that the plaintiff's bill of particulars contained allegations as against him through August 2, 2002, which was more than 2 1/212 years prior to the commencement of the action.   In opposition, the plaintiff asserted that Lieffrig had engaged in a continuous course of treatment of her right breast from her first visit in December 2001, until he examined her after the surgery in August 2004, and that the statute of limitations as against Lieffrig was tolled during that period.   In reply, Lieffrig contended that the initial course of treatment of the plaintiff's right breast terminated with an August 2, 2002, visit, and that the next visit on December 23, 2003, was precipitated by the plaintiff's complaints concerning an unrelated surgery.

Singh separately moved pursuant to CPLR 3211(a)(5) to dismiss so much of the complaint insofar as asserted against him as alleged malpractice committed prior to January 1, 2003 (i.e., more than 2 1/212 years prior to commencement of this action).   In opposition, the plaintiff alleged that Singh, too, had engaged in a continuous course of treatment of her right breast until January 23, 2003, the date of his last report, and that the statute of limitations as against Singh was tolled during that period.

The Supreme Court denied the motions.   We affirm the order, finding the existence of questions of fact as to whether the continuous treatment doctrine is applicable as to both Singh and Lieffrig.

 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 burden of proving, prima facie, that the time in which to commence an action has expired (see LaRocca v. DeRicco, 39 A.D.3d 486, 486-487, 833 N.Y.S.2d 213;  Gravel v. Cicola, 297 A.D.2d 620, 747 N.Y.S.2d 33).   The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies (see LaRocca v. DeRicco, supra;  Gravel v. Cicola, supra at 621, 747 N.Y.S.2d 33).

 Here, limited to the allegations in the plaintiff's bill of particulars, Lieffrig demonstrated, prima facie, that the action was time barred insofar as asserted against him (see CPLR 214-a).   However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations as to Lieffrig was tolled by the continuous treatment doctrine (cf. Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296, 670 N.Y.S.2d 169, 693 N.E.2d 196;  Allende v. New York City Health and Hosps. Corp., 90 N.Y.2d 333, 338, 660 N.Y.S.2d 695, 683 N.E.2d 317).   Lieffrig's reply papers merely raised additional questions of fact as to the applicability of the toll.

In support of his separate motion, Singh demonstrated, prima facie, that so much of the complaint insofar as asserted against him as concerning alleged malpractice committed prior to January 1, 2003, was time barred (see CPLR 214-a).   However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations as to Singh was tolled by the continuous treatment doctrine (see Elkin v. Goodman, 285 A.D.2d 484, 486, 727 N.Y.S.2d 158;  cf. Mosezhnik v. Berenstein, 33 A.D.3d 895, 896, 823 N.Y.S.2d 459).

Thus, the motions were properly denied.