Opinion
May 10, 1999
Appeal from the Supreme Court, Orange County (Peter C. Patsalos, J.).
Ordered that the order is reversed, with costs, the motion is denied, and those causes of action that were based on the respondents' conduct which occurred prior to September 14, 1993, are reinstated.
The plaintiffs commenced this action, inter alia, to recover damages based on the respondents' failure to properly diagnose and treat a malignant lump in the breast of the plaintiff Jane C. Dolfini for three years. The respondents moved for partial summary judgment dismissing all causes of action based on their conduct which occurred more than 2 1/2 years prior to the commencement of the action. The plaintiffs argue that the respondents' continuous treatment of the breast condition tolled the Statute of Limitations. The Supreme Court granted the respondents' motion and we reverse.
The plaintiffs have demonstrated that there are issues of fact as to whether the respondents "explicitly contemplated further treatment of her breast condition" between February 1993 and February 1996 ( see, Young v. New York City Health Hosps. Corp., 91 N.Y.2d 291, 297). Whether the respondents undertook to monitor Ms. Dolfini's breast once they had discovered the lump, or whether they had completely turned over the care of her condition to Dr. Carlito V. Morilla, are questions of fact for the jury ( see, Adams v. Frankel, 242 A.D.2d 595; Pace v. Caron, 232 A.D.2d 617; Bartolo v. Monaco, 202 A.D.2d 535; Garcia-Alano v. Guttman Breast Diagnostic Inst., 188 A.D.2d 262). There is also a question of fact as to whether the respondents' continued prescription of hormone replacements may have contributed to the metastasis of the breast cancer ( see, Sinclair v. Cahan, 240 A.D.2d 152).
S. Miller, J. P., Sullivan, Joy and Altman, JJ., concur.