GLASBY v. FOGLER

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

Arthur GLASBY, Respondent, v. Richard FOGLER, etc., Appellant.

Decided: March 31, 2003

A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN and ROBERT W. SCHMIDT, JJ. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (Richard E. Lerner and Jason R. Corrado of counsel), for appellant. Uvino & Associates, Forest Hills, N.Y. (Eugene M. Banta of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (R. Goldberg, J.), dated April 22, 2002, as denied that branch of his motion which was for summary judgment dismissing the complaint on the ground that it is barred by the statute of limitations.

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

 A medical malpractice claim generally accrues on the date of the alleged wrongful act or omission, and is governed by the 2 1/2 year statute of limitations (see CPLR 214-a;  Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026).   However, under the continuous treatment doctrine, the limitations period does not begin to run until the end of a course of treatment where “the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Allende v. New York City Health and Hosp. Corp., 90 N.Y.2d 333, 338, 660 N.Y.S.2d 695, 683 N.E.2d 317;  see Nykorchuck v. Henriques, supra;  McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108).  “The continuous treatment doctrine will be applied where the patient initiates a timely visit to complain about and seek treatment for a problem related to the initial treatment” (Klotz v. Rabinowitz, 252 A.D.2d 542, 543, 675 N.Y.S.2d 649;  see McDermott v. Torre, supra at 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108).

 Contrary to the defendant's contention, the Supreme Court properly denied his motion for summary judgment dismissing the complaint as time-barred.   In support of his motion, the defendant established that this action was commenced more than 2 1/2 years after the hernia surgery which allegedly caused the plaintiff to suffer nerve damage.   However, in opposition to the motion, the plaintiff demonstrated that there is an issue of fact as to whether his last visit to the defendant on January 21, 1999, for pain related to hernia surgery, constituted a timely visit for corrective treatment within the scope of the continuous treatment doctrine (see Gehbauer v. Baker, 292 A.D.2d 255, 739 N.Y.S.2d 79;  Klotz v. Rabinowitz, supra;  Siegel v. Wank, 183 A.D.2d 158, 589 N.Y.S.2d 934).   If the January 21, 1999, visit was part of a course of continuous treatment, this action, which was commenced less than 2 1/2 years from that date, is not barred by the statute of limitations.

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