WALTON v. SOHN

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Brenda WALTON, as Administratrix of the Estate of Judith Ann Priester, etc., Plaintiff–Appellant, v. David SOHN, M.D., Defendant–Respondent.

Decided: January 15, 2013

SAXE, J.P., RENWICK, FREEDMAN, ROMÁN, GISCHE, JJ. Alpert, Slobin & Rubenstein, LLP, Garden City (Lisa M. Comeau of counsel), for appellant. Ellenberg & Partners LLP, New York (Samir Patel of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 12, 2011, which granted defendant's motion to dismiss plaintiff's complaint as time-barred, unanimously affirmed, without costs.

Defendant met his burden on the motion by submitting evidence showing that plaintiff's claims relating to defendant's alleged failure to diagnose decedent's breast cancer were time-barred (see CPLR 214–a; Massie v. Crawford, 78 N.Y.2d 516, 519 [1991] ).

In opposition, plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Massie, 78 N.Y.2d at 519, 577 N.Y.S.2d 223, 583 N.E.2d 935). The record shows that, after decedent's diagnosis in December of 2004, she obtained all of her breast cancer related treatment from Memorial Sloan–Kettering Cancer Center (MSK), and her treatment with defendant was limited to general medical concerns, such as her high blood pressure. Although defendant was her admitting physician in June 2006, when she sought treatment at Our Lady of Mercy Medical Center for headaches, decedent declined to permit defendant to treat her for the cancer that had metastasized to her brain. Instead, she obtained a transfer back to MSK. Thus, not only was further treatment not “explicitly anticipated” by decedent and defendant (Rodriguez v. Mount Sinai Hosp., 96 A.D.3d 534, 535, 949 N.Y.S.2d 11 [1st Dept 2012], quoting Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 906–907 [1996] ), it was explicitly refused by decedent.