QUINONES v. WALTZ

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Supreme Court, Appellate Division, First Department, New York.

Frank QUINONES, et al., Plaintiffs-Appellants, v. Joseph WALTZ, M.D., et al., Defendants-Respondents.

Decided: February 25, 1999

SULLIVAN, J.P., NARDELLI, WALLACH and TOM, JJ. Lawrence P. Biondi, for Plaintiffs-Appellants. Lori A. Marano, for Defendants-Respondents.

Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered December 26, 1997, which granted defendant doctor's motion for dismissal of certain malpractice claims against him as time-barred and denied plaintiffs' cross motion to amend the complaint, unanimously affirmed, without costs.

 Plaintiff's claims for medical malpractice allegedly committed prior to November 18, 1992 were properly dismissed since the complained of course of treatment antedating November 18, 1992, including prescriptions (see, e.g., Forte v. Weiner, 214 A.D.2d 397, 398, 624 N.Y.S.2d 596, lv. dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773) and monitoring (see, Leale v. New York City Health & Hosps. Corp., 222 A.D.2d 414, 415, 634 N.Y.S.2d 536), had concluded by that date and, thus had accrued more than 21/212 years prior to the commencement of this action (see, CPLR 214-a).   In this connection, we note that informal discussions between plaintiff and defendant doctor respecting an epidural stimulator, subsequent to and not foreseen as part of the original course of treatment for plaintiff's disc herniations, did not constitute continuous treatment for Statute of Limitations purposes (cf., Klotz v. Rabinowitz, 252 A.D.2d 542, 675 N.Y.S.2d 649).   The IAS court's denial of plaintiff's cross motion to amend his complaint to include a cause of action for lack of informed consent was also proper (see, Jolly v. Russell, 203 A.D.2d 527, 528, 611 N.Y.S.2d 232), as was the balance of the appealed disposition.   The complaint failed to allege any cognizable claim for breach of warranty against defendant doctor since he did not sell the stimulator to plaintiff (see, Betro v. GAC International, Inc., 158 A.D.2d 498, 499, 551 N.Y.S.2d 72), nor did the complaint state a distinct claim against defendant for fraud (see, Spinosa v. Weinstein, 168 A.D.2d 32, 41-42, 571 N.Y.S.2d 747).

MEMORANDUM DECISION.