BATISTE v. BROOKLYN HOSPITAL CENTER (1998)

In an action to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Bellard, J.), dated December 19, 1997, which denied their motion for summary judgment dismissing the complaint on the ground that the action is time-barred pursuant to CPLR 214-a.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The instant medical malpractice action was commenced against the defendants on May 18, 1995.   CPLR 214-a provides for the tolling of the 2 1/2 year Statute of Limitations in medical malpractice cases where there is “continuous treatment for the same illness, injury or condition”.   In this case, the defendant Dr. Aizid I. Hashmat performed surgery on the plaintiff on July 22, 1992, for a condition known as priapism.   The plaintiff was thereafter discharged from the hospital on August 1, 1992, and his first post-operative visit occurred on October 7, 1992.   Although three additional appointments were scheduled with the plaintiff, he failed to appear for any of them, and the “failure to make a timely return visit to seek corrective action may be viewed as a break in the continuity of treatment, which is asserted for the application of the doctrine” (Coyne v. Besser, 165 A.D.2d 857, 858, 560 N.Y.S.2d 322).   Moreover, the reasons for the plaintiff's subsequent visits to Dr. Hashmat were unrelated to the original condition or complaint (see, Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026;  Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777).

MEMORANDUM BY THE COURT.