ORSINI v. POSTEL

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

Morgan ORSINI, Individually and as Administrator of the Estate of Susan Casper, Deceased, et al., Plaintiffs-Respondents, v. Steven POSTEL, as Executor of Allen H. Postel, Deceased, Defendant-Appellant.

Decided: August 12, 1999

MAZZARELLI, J.P., RUBIN, ANDRIAS and BUCKLEY, JJ. Beth Nancy Alson, for Plaintiffs-Respondents. Daniel S. Ratner, for Defendant-Appellant.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about December 29, 1997, which denied defendant's motion for summary judgment dismissing the complaint for medical malpractice as time-barred, unanimously affirmed, without costs.

 Subsequent to defendant doctor's operation upon plaintiff's decedent to remove a malignant melanoma, plaintiff's decedent, at defendant doctor's instruction, returned from time to time over a period of years to defendant doctor's office for dermatological examinations during which defendant doctor routinely checked for a recurrence of melanoma.   Since there is a triable issue of fact as to whether these post-operative examinations constituted continuous treatment for melanoma, the recurrence of which defendant doctor allegedly failed by reason of malpractice to timely diagnose, defendant doctor's motion to dismiss the complaint as time-barred was properly denied.   If the subject post-operative examinations did constitute continuous treatment for melanoma, the applicable statutory period would have been tolled for the duration of the treatment rendering the instant action against defendant doctor timely (see, Garcia-Alano v. Guttman Breast Diagnostic Inst., 188 A.D.2d 262, 590 N.Y.S.2d 453, lv. dismissed 81 N.Y.2d 1007, 599 N.Y.S.2d 806, 616 N.E.2d 161).

MEMORANDUM DECISION.