EVANS v. GINSBERG

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

Joan EVANS, Appellant, v. Joel GINSBERG, etc., Respondent.

Decided: March 25, 2002

DAVID S. RITTER, J.P., CORNELIUS J. O'BRIEN, STEPHEN G. CRANE and BARRY A. COZIER, JJ. Huston & Schuller, P.C., New York, N.Y. (David M. Schuller of counsel), for appellant. Geisler & Gabriele, LLP, Garden City, N.Y. (Lori A. Marano of counsel), for respondent.

In an action to recover damages for medical malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated May 14, 2001, as, upon renewal, granted the defendant's motion for summary judgment dismissing the complaint.

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

 A medical malpractice action must be commenced within two years and six months of the act, omission, or failure complained of, or the date of the last treatment where there is a continuous course of treatment for the same original condition or complaint (see CPLR 214-a;  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).   The defendant satisfied his burden as the proponent of the motion for summary judgment by demonstrating that this action was commenced more than 2 1/2 years after the occurrence of the alleged malpractice upon which the plaintiff's complaint is based.

 The burden then shifted to the plaintiff to demonstrate a triable issue of fact with respect to the toll of the statute of limitations based upon the continuous treatment doctrine (see Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 906, 646 N.Y.S.2d 659, 669 N.E.2d 817;  Massie v. Crawford, 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935).   The Supreme Court correctly determined that the plaintiff failed to sustain her burden.   The post-operative care and palliative treatment of the left eye received by the plaintiff for 13 years after the surgery was not a continuation of the course of treatment for the condition which originally gave rise to the alleged malpractice (see CPLR 214-a;  Almodovar v. St. Vincent's Hosp. and Med. Ctr. of N.Y., 236 A.D.2d 435, 653 N.Y.S.2d 664).   Moreover, “the continuing nature of a diagnosis does not itself amount to continuous treatment” (McDermott v. Torre, 56 N.Y.2d 399, 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108;  see Fauci v. Wolan, 238 A.D.2d 305, 306, 656 N.Y.S.2d 298).

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