Summary
In Curcio, the Court of Appeals affirmed summary judgment dismissing as time-barred a malpractice claim against a surgeon who had operated on the plaintiff's nose.
Summary of this case from Devadas v. NiksarliOpinion
Argued October 8, 1984
Decided November 13, 1984
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Henderson W. Morrison, J.
Barry A. Schwartz for appellant.
Roger B. Lawrence for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
In opposition to defendant doctor's motion for summary judgment on the ground that plaintiff's malpractice cause of action is time barred, plaintiff presents nothing other than an affidavit of her attorney, which evidences no personal knowledge of the facts on his part. There is, therefore, no factual basis for plaintiff's claim of estoppel.
With respect to the contention that the statute was tolled under the continuous treatment doctrine, the depositions of plaintiff and defendant doctor, presented as part of defendant's papers, established that surgery was performed on plaintiff's nose in 1974, that she was discharged by defendant on January 14, 1976 and that on February 24, 1979, without having seen defendant or any other physician in the meantime with respect to her nose, plaintiff went back to see defendant because her "breathing was belabored and the indentation concave."
It is not necessary to determine whether the February 24, 1979 visit was "for the sole purpose of ascertaining the state of the patient's condition" within the meaning of CPLR 214-a, or whether its definition of continuous treatment can be applied to claimed malpractice with respect to surgery performed before its effective date. Nor need we hold that in every instance in which a period longer than the applicable Statute of Limitations passes between discharge after surgery and the next visit to the doctor the claim will be barred (cf. Bennin v Ramapo Gen. Hosp., 72 A.D.2d 736). Although defendant's February 24, 1979 advice sufficiently establishes that the visit was not a "ploy to revive the time-barred action" (cf. Florio v Cook, 65 A.D.2d 548, affd 48 N.Y.2d 792), it is enough to bar plaintiff's claim that no contact between plaintiff and defendant after her discharge and before the February 24, 1979 visit has been shown. Under such circumstances the required continuity has not been established through "a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment" ( McDermott v Torre, 56 N.Y.2d 399, 406 [emphasis supplied]), or otherwise (cf. Lomber v Farrow, 91 A.D.2d 725 [toll by infancy]; see Brush v Olivo, 81 A.D.2d 852, 853).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
Order affirmed, with costs, in a memorandum.