TEXERIA v. BAB NUCLEAR RADIOLOGY

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

Sandra TEXERIA, respondent, v. BAB NUCLEAR RADIOLOGY, P.C., et al., appellants, et al., defendants.

Decided: September 30, 2008

WILLIAM F. MASTRO, J.P., PETER B. SKELOS, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., Gina B. DiFolco, and Adonaid Casado of counsel), for appellants. Kramer & Dunleavy, LLP, New York, N.Y. (Lenore Kramer of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants BAB Nuclear Radiology, P.C., Stuart Katz, and Paul Bonheim appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered October 17, 2006, as denied that branch of their motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003.

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

 On their motion for summary judgment, the appellants established their prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572), by demonstrating that any medical malpractice claims based upon alleged acts they committed prior to January 1, 2003, were time-barred (see CPLR 214-a).   However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Cherise v. Braff, 50 A.D.3d 724, 726, 855 N.Y.S.2d 233;  Mosezhnik v. Berenstein, 33 A.D.3d 895, 896, 823 N.Y.S.2d 459).   Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003.

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