DELLERT v. KRAMER

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

Peggy DELLERT, Plaintiff-Respondent, v. Lawrence KRAMER, et al., Defendants-Appellants.

Decided: February 27, 2001

NARDELLI, J.P., WILLIAMS, TOM, ANDRIAS and BUCKLEY, JJ. Jesse S. Waldinger, for Plaintiff-Respondent. Neil B. Ptashnik, Bhalinder L. Rikhye, for Defendants-Appellants.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about December 17, 1999, which, in this medical malpractice action, denied defendant New York Medical Group's motion for partial summary judgment pursuant to CPLR 214-a and denied defendant Kramer's motion for summary judgment dismissing the complaint as against him, or, in the alternative, for partial summary judgment pursuant to CPLR 214-a, unanimously affirmed, without costs.

Dr. Kramer's motion for summary judgment dismissing the complaint as against him was properly denied.   Although Dr. Kramer made an adequate prima facie showing that he had not committed malpractice, the responding affidavit of plaintiff's expert was sufficient to raise triable issues as to whether Kramer had, in fact, been negligent in his treatment of plaintiff's symptoms, ultimately, and allegedly belatedly, attributed to ovarian cancer (cf., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Burt v. Lenox Hill Hosp., 141 A.D.2d 378, 529 N.Y.S.2d 313).

The motion court also properly applied the continuous treatment doctrine to toll the Statute of Limitations as to both defendants.   The fact that the defendants did not initially diagnose plaintiff's ovarian cancer does not detract from the conclusion that defendants treated plaintiff continuously over the relevant time period for symptoms ultimately traceable to the cancerous condition whose alleged misdiagnosis and alleged mistreatment has given rise to this action (see, Hill v. Manhattan W. Med. Group H.I.P., P.C., 242 A.D.2d 255, 661 N.Y.S.2d 229;  Williams v. Health Ins. Plan of Greater New York, 220 A.D.2d 343, 633 N.Y.S.2d 22).