McCABE v. Frank L. Ross, et al., Respondents.

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

John E. McCABE, Appellant, v. Karl FRIEDMAN, et al., Defendants, Frank L. Ross, et al., Respondents.

Decided: November 27, 2000

CORNELIUS J. O'BRIEN, J.P., WILLIAM C. THOMPSON, SONDRA MILLER and SANDRA J. FEUERSTEIN, JJ. David B. Golomb, New York, N.Y. (Frank A. Longo of counsel), for appellant. Wortman, Fumuso, Kelly, DeVerna & Snyder, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondents.

In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated September 13, 1999, as granted the motion of defendants Frank L. Ross, Irving F. Chanin, and C & C Surgical Group, P.C., for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The action is time-barred as against the respondents since it was commenced more than two and one-half years after their only involvement in the plaintiff's treatment (see, CPLR 214-a;  Evra v. Hillcrest Gen. Hosp., 111 A.D.2d 740, 490 N.Y.S.2d 234).   The plaintiff is not entitled to have his claim relate back to his timely-commenced action against the defendants Karl Friedman and Central General Hospital, as he failed to show that those defendants are united in interest with the respondents (see, CPLR 203[b];  Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978;  Austin v. Interfaith Med. Ctr., 264 A.D.2d 702, 703, 694 N.Y.S.2d 730).   The plaintiff did not demonstrate that the continuous treatment doctrine is applicable to toll the Statute of Limitations, as there was no showing of a relevant continuing relationship between the respondents and the other defendant doctors (see, Meath v. Mishrick, 68 N.Y.2d 992, 994, 510 N.Y.S.2d 560, 503 N.E.2d 115;  Evra v. Hillcrest Gen. Hosp. supra;  Swartz v. Kar lan, 107 A.D.2d 801, 803, 484 N.Y.S.2d 635).   There was no showing that both the plaintiff and the respondents contemplated further treatment (see, Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 295, 670 N.Y.S.2d 169, 693 N.E.2d 196;  Richardson v. Orentreich, 64 N.Y.2d 896, 899, 487 N.Y.S.2d 731, 477 N.E.2d 210).

 The plaintiff's contention that the motion was premature is also without merit.   The substantial documentary exchange which had already occurred was sufficient to give the plaintiff the information he required to oppose the motion.   Speculation that further discovery might reveal information helpful to his case did not create a basis for postponing consideration of the motion (see, Culhane v. Schorr, 259 A.D.2d 511, 513, 686 N.Y.S.2d 105).


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