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Torres v. Terence Cardinal Cooke Health Care Center

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 27, 2010

MARILEXIS TORRES, ETC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
TERENCE CARDINAL COOKE HEALTH CARE CENTER, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered December 15, 2009, which, insofar as appealed from, denied defendant's motion for summary judgment dismissing plaintiff's medical malpractice claims as time-barred, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Mazzarelli, Andrias, Saxe, DeGrasse, JJ.

109359/08

The action arises out of plaintiff's decedent's residence at defendant nursing home for approximately 27 months during which he developed numerous pressure sores about his body and other allegedly related conditions. At issue is whether otherwise untimely malpractice claims based on these sores are saved by the continuous treatment doctrine. We find the doctrine to be applicable in view of defendant's own records stating that at the time of the decedent's initial admission, his "pressure ulcer assessment score" was at a "high risk level," thereby suggesting that the decedent had a "condition" that had to be monitored and treated (see Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991] ["essential to the application of the doctrine is that there has been a course of treatment established with respect to the condition that gives rise to the lawsuit"]). Given this condition and treatment, and given defendant's admission that two of the sores at issue were present at the time of the decedent's final discharge from the facility after the limitations cut-off date, it does not avail defendant that the other sores at issue may have healed before the limitations cut-off date. We have considered defendant's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100427

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