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Yanez v. Watkins

Supreme Court of New York, Second Department

August 1, 2018

Nora Yanez, etc., appellant,
v.
Kevin T. Watkins, etc., et al., respondents. Index No. 061090/13

          Argued - April 17, 2018

         D56223 C/htr

          Pegalis & Erickson, LLC, Lake Success, NY (Gerhardt M. Nielsen of counsel), for appellant.

          Fumuso, Kelly, Swart, Farrell, Polin & Christesen, LLP, Hauppauge, NY (Scott G. Christesen of counsel), for respondents.

          CHERYL E. CHAMBERS, J.P. SANDRA L. SGROI JOSEPH J. MALTESE FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from two orders of the Supreme Court, Suffolk County (James Hudson, J.), dated March 16, 2015, and April 14, 2016, respectively. The first order granted the defendants' motion for summary judgment dismissing the second, third, and fourth causes of action. The second order denied the plaintiff's motion for leave to reargue and renew her opposition to the defendants' motion.

         ORDERED that the appeal from so much of the order dated April 14, 2016, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further, ORDERED that the order dated March 16, 2015, is affirmed; and it is further, ORDERED that the order dated April 14, 2016, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendants.

         In 2009, the plaintiffs decedent came under the care of the defendant Kevin T. Watkins for stomach cancer. Watkins referred the decedent to the defendant Jonathan Buscaglia for diagnostic testing, and thereafter, Watkins performed a robotic total gastrectomy at Stony Brook University Medical Center (hereinafter Stony Brook). The decedent remained at Stony Brook until September 2010, where he had multiple subsequent surgeries and procedures, including two colonoscopies performed by Buscaglia on April 30, 2010, and May 19, 2010. On September 8, 2010, the decedent was discharged from Stony Brook by Watkins, and transferred to a subacute rehabilitation facility. The decedent was later transferred from that facility to a series of different hospitals. He died on June 9, 2011.

         In February 2012, the plaintiff, Nora Yanez, as administrator of the estate of the decedent, and individually, filed a claim in the Court of Claims against the State of New York, inter alia, to recover damages for wrongful death and malpractice allegedly committed by its employees at Stony Brook. Upon being advised that the State might challenge the allegation that it was vicariously liable for the conduct of Watkins and Buscaglia, among others, the plaintiff commenced the instant action on May 24, 2013, against those defendants and certain medical practices with which they allegedly were affiliated.

         The defendants moved for summary judgment dismissing, as time-barred, the second, third, and fourth causes of action, alleging medical malpractice, lack of informed consent, and a derivative claim for loss of services, respectively. In an order dated March 16, 2015, the Supreme Court granted the motion. The plaintiff thereafter moved, inter alia, for leave to renew her opposition to the motion, which was denied by order dated April 14, 2016. The plaintiff appeals from both orders.

         The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the action was commenced more than two years and six months after the alleged acts of malpractice occurred (see CPLR 214-a; Massie v Crawford, 78 N.Y.2d 516, 519; Nisanov v Khulpateea, 137 A.D.3d 1091). Thus, the burden shifted to the plaintiff to raise a triable issue of fact as to the applicability of an exception to, or toll of, the statute of limitations (see Massie v Crawford, 78 N.Y.2d at 519; Vissichelli v Glen-Haven Residential Health Care Facility, Inc., 136 A.D.3d 1021; Lopez v Wyckoff Hgts. Med. Ctr., 78 A.D.3d 664, 665).

         "Under the continuous treatment doctrine, the 2% year [limitations] period does not begin to run until the end of the course of treatment, 'when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'" (Gomez v Katz, 61 A.D.3d 108, 111, quoting Nykorchuck v Henriques, 78 N.Y.2d 255, 258). Here, the plaintiff has not raised a triable issue of fact as to whether this toll applies. The diagnostic services performed by Buscaglia were discrete and complete, and not part of a course of treatment (see Nisanov v Khulpateea, 137 A.D.3d at 1093). As to Watkins, the mere statement on the decedent's transfer summary that the decedent should "follow-up" with "Dr. Watkins' clinic" as an outpatient in two or three months did not evince a continued course of treatment where no follow-up appointment was actually scheduled, and the decedent thereafter received treatment at other hospitals (see Massie v Crawford, 78 N.Y.2d at 520; Cole v Richard G. Karanfilian, M.D., P.C, 117 A.D.3d 670; Wei Wei v Westside Women's Med. Pavilion, P.C., 115 A.D.3d 662, 663-664; Capece v Nash, 70 A.D.3d 743, 745; Elrington v Staub, 29 A.D.3d 939).

         The plaintiff also failed to raise a triable issue of fact as to the applicability of the relation back doctrine (see Buran v Coupal, 87 N.Y.2d 173, 177). That doctrine requires the plaintiff to demonstrate, among other things, that the new defendants knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against them as well (see id. at 178; Arsell v Mass. One LLC, 73 A.D.3d 668, 669). "When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake and the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired'' (Buran v Coupal, 87 N.Y.2d at 181). Here, there was no showing of a mistake concerning the defendants' identities, which would have prevented the plaintiff from commencing an action against them before the statute of limitations expired (see Arsell v Mass. One LLC, 73 A.D.3d at 670; Stamatopoulos v Salzillo, 50 A.D.3d 885).

         The new evidence submitted by the plaintiff in support of her motion to renew would not have changed the prior determination that neither the continuous treatment nor relation-back ...


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