Darlene M. Lohnas, Respondent,v.Frank A. Luzi, Jr., M.D. et al., Appellants.BriefN.Y.January 3, 20180 0 To be Argued by: TAMSIN J. HAGER, ESQ. Time Requested for Argument: (15 Minutes) STATE OF NEW YORK Court of Appeals APL-2016-00186. DARLENE M. LOHNAS, Plaintiff, vs. FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C., Defendants. Appellate Division Docket Number: CA 15-00195. (Appeal No. 1.) DARLENE M. LOHNAS, Plaintiff-Respondent, vs. FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C., Defendants-Appellants. Appellate Division Docket Number: CA 15-00398. (Appeal No. 2.) Erie County Index No.: 2008-010850. REPLY BRIEF FOR DEFENDANTS-APPELLANTS FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C. THE TARANTINO LAW FIRM, LLP Attorneys for Defendants-Appellants 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 Telephone: (716) 849-6500 Facsimile: (716) 849-6503 TAMSIN J. HAGER, ESQ. Of Counsel BATAVIA LEGAL PRINTING, INC. Telephone (866) 768-2100 TABLE OF CONTENTS Table of Authorities ................................................. ii Preliminary Statement ................................................ 1 Argument ......................................................... 3 POINT I: THE CONTINUOUS TREATMENT DOCTRINE DOES NOT APPLY, AS A MATTER OF LAW ........................... 3 A. There was no continuous treatment as of September 5, 2003 ......... 3 B. There was no continuous treatment after September 5, 2003, since no future treatment was explicitly anticipated ................. 8 C. Plaintiffs lack of trust and confidence in defendant broke any continuity of treatment ................................... 13 D. Plaintiff resumed treatment on April28, 2006, as opposed to continuing it ............................................. 16 E. The Appellate Division's decision is within this Court's scope ofreview ............................................ 21 POINT II: PLAINTIFF MAY NOT ARGUE EQUITABLE ESTOPPEL SINCE PLAINTIFF DID NOT APPEAL ...................... 23 CONCLUSION .................................................... 24 TABLE OF AUTHORITIES Cases: Allende v. New York City Health Hasps. Corp., 90 NY2d 333 (1997) ...................................... 10, 14,22 Au/ita v. Chang, 44 AD3d 1206 (3rd Dept. 2007) .............................. 8, 9, 11, 12 Barrel/a v. Richmond Memorial Hosp., 88 AD2d 379 (2nd Dept. 1982) .................................... 17 Bennin v. Ramapo Gen Hosp., 72 AD2d 736 (2nd Dept. 1979) ..................................... 16 Bulger v. Nassau County Medical Center, 266 AD2d 212 (2nd Dept. 1999). .. . . . . . . . . . . . . . . . . . . . . ............. 17 Cannon v. Putnam, 76 NY2d 644 (1990) .............................................. 22 Chestnut v. Bobb-McKoy, 94 AD3d 659 (1st Dept. 2012) ...................................... 7 Cox v. Kingsboro Medical Group, 88 NY2d 904 (1996) ........................................... 8, 12 Curcio v. Ippolito, 97 AD2d 497 (2nd Dept. 1983), aff'd 63 NY2d 967 (1984) ......................................... 8, 18 . Devadas v. Niksarli 120 AD3d 1000 (1st Dept. 2014) ................................... 20 Edmonds v. Getchonis, 150 AD2d 879 (3rd Dept. 1989) ................................. 13, 21 -11- Flint v. Zielinski, 130 AD3d 1460 (4th Dept. 2015) ................................... 6 Fonda v. Paulsen, 46 AD2d 540 (3rd Dept. 1975) .................................... 21 Gomez v. Katz, 61 AD3d 108 (2nd Dept. 2009) ................................. 17, 18 Grellet v. City of New York, 118AD2d 141 (2ndDept.1986) ................................ 17, 19 Marlowe v. E.!. DuPont deNemours & Co., 112 AD2d 769 (41h Dept. 1985) .................................... 3 Marmol v. Green, 7 AD3d 682 (2nd Dept. 2004) ..................................... 17 Massie v. Crawford, 78 NY2d 516 (1991), rearg. denied 79 NY2d 978 (1992) ................................. 11, 14, 15, 17, 18 McDermott v. Torre, 56 NY2d 399 (1982) ..................................... 3, 13, 15, 18 Peykarian v. Yin Chu Chien, 109 AD3d 806 (2nd Dept. 2013 .................................. 19,20 Richardson v. Orentreich, 64 NY2d 896 (1985) ............................................. 8 Rizk v. Cohen, 73 NY2d 98 (1989) .......................................... 13, 14 Sherry v. Queens Kidney Center, 117 AD2d 663 (2nd Dept. 1986) ................................. 17, 19 Stiles v. Batavia Atomic Horseshoes, Inc. 81 NY2d 950 (1993) .......................................... 21, 22 -111- PRELIMINARY STATEMENT This brief is submitted in reply to the Respondent's Brief. As an initial matter, plaintiff improperly argues that equitable estoppel applies. She did not appeal the Appellate Division's decision. Only defendants appealed. The only issue before this Court is the ruling appealed by defendants - that is, the ruling that triable issues of fact exist as to the application of the continuous treatment doctrine. Plaintiffs Question 2 and her arguments and facts bearing on equitable estoppel and alleged fraudulent misrepresentation have no place in Respondent's Brief. They must be completely disregarded. The Appellate Division unanimously held that equitable estoppel does not apply here. Plaintiff did not seek a review. That issue has been finally decided, as a matter of law. As for the proper subject of this appeal, the continuous treatment doctrine, plaintiff has raised no issues of fact as to its application. Under the undisputed facts, the continuous treatment doctrine does not apply here to toll the statute of limitations, as a matter of law. The undisputed facts include that: ( 1) plaintiffs September 5, 2003 office visit was to "check" her shoulder after being pushed against a wall, 17 months after her last post-operative visit following a decompression/rotator cuff repair surgery; (2) no further appointment was scheduled at the September 5, 2003 office visit; (3) plaintiff was to return only "as needed" as of that date; ( 4) plaintiff did not return for 32 months, because she was "discouraged" and "didn't really want to go back" to Dr. Luzi; (5) plaintiff had no contact whatsoever with Dr. Luzi or his office during her 32 month gap; and (6) plaintiff did not return until April 28, 2006, a gap exceeding the length of the statute of limitations. Based on the undisputed facts, plaintiff was not under Dr. Luzi' s continuous care and treatment on September 5, 2003, or after. When she decided that she did not want to go back to see him, she lacked trust and confidence in his care and treatment and was not relying on him to oversee her progress. During her 32 month absence, there was no ongoing care and treatment that she would have had to interrupt had she chosen to sue him. Her return on April 28, 2006, after the statute of limitations expired, constituted a resumption of treatment, not a continuation of it. For the reasons set forth below, we ask this Court to reverse the Appellate Division's ruling that triable issues of fact exist as to whether the continuous treatment doctrine applies, and hold there was no continuous treatment, as a matter of law. 2 ARGUMENT POINT I THE CONTINOUS TREATMENT DOCTRINE DOES NOT APPLY, AS A MATTER OF LAW A. There was no continuous treatment as of September 5, 2003. There was no continuous treatment as of the September 5, 2003 visit, as a matter oflaw, and plaintiff has not raised a triable issue of fact as to same. Plaintiffs argument that this visit was for the "same condition" of her shoulder for which she had been previously seen by Dr. Luzi is of no avail. Even if a jury agreed with plaintiff that the humeral head was mispositioned at the 1999 surgery, the visit on September 5, 2003, was still not related to that condition; it was for a "check" of the shoulder after plaintiff was pushed against a wall and a diagnosis of shoulder strain and contusion. The continuous treatment doctrine applies only 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." McDermott v. Torre, 56 NY2d 399, 405 (1982). It does not apply to this September 2003 visit, which was initiated at the patient's request to have her condition checked [id.], and where the medical services rendered were "discrete and complete." Marlowe v. E.I. DuPont deNemours & Co., 112 AD2d 769, 771 (4th Dept. 1985)(citation omitted). 3 The undisputed facts establish that the nature of the September 5, 2003 visit was for a check after being pushed up against a wall, and not for continuous treatment of the same complaints and condition that plaintiff sought treatment for at the previous visit in April 2002 or during the initial course of treatment. Seventeen months earlier, on April 2, 2002, plaintiff saw Dr. Luzi for her last post-operative visit for her 2002 decompression/rotator cuff repair surgery. (R165). Plaintiff had done "reasonably well" following this surgery, and she reported overall improvement, with less pain a majority of the time. (R165, 568-569). Dr. Luzi did not schedule a future appointment, and she was to return "as needed." (R165). When she returned 17 months later on September 5, 2003, she saw Dr. Luzi for a specific, limited complaint of"discomfort over several days" after having been pushed up against a wall by one of her children. (R161 ). She had done "reasonably well" until a week or so ago when she was pushed. (R161, 577-578). She had had some discomfort over several days and wanted it "checked out," although she was feeling better now. (R161, 578-579). Dr. Luzi diagnosed a left shoulder strain and contusion "a week and one-half ago with no obvious evidence of loosening or fracture," recommended exercises on her own and gave her anti-inflammatory samples. (R161-162). He did not schedule a future appointment, and was to see her only "as needed." (R161-162). The possibility of future surgery was not discussed. (R161 ). Plaintiff did not return for 32 months. 4 Thus, the September 2003 visit was not part of an ongoing course of treatment for either of plaintiffs prior shoulder surgeries or conditions. It was solely related to having been pushed, and for a diagnosis of strain and contusion. Even were a jury to agree with plaintiff that defendant mispositioned the humeral head at the 1999 surgery and that the September 5, 2003 x-ray shows wearing of the glenoid and rotator cuff associated with such mispositioning, it would still not change the essential nature of the September 2003 office visit, which was to check the shoulder after being pushed, and to treat the plaintiff for a shoulder strain and contusion, a different condition and complaint unrelated to the two prior surgeries and their associated courses of treatment. Plaintiff argues that x-rays from September 5, 2003, showing the humeral head implant abutting against the acromion, raise a triable issue of fact regarding continuous treatment. (Respondent's Brief at 8, 44, R161, 209). This argument is misguided. The critical issue is not what the x-rays at this visit showed; the critical issue is the nature of the office visit and of plaintiffs symptoms and complaints at that time of this visit, which Dr. Luzi undertook to treat. The nature of the September 2003 visit was to check her shoulder after being pushed. Plaintiffs complaints were "some discomfort over several days" following being pushed. (R161 ). She was now feeling better, and a numb sensation had already resolved. (R161 ). Dr. Luzi 5 diagnosed and provided discrete and complete care for a shoulder strain and contusion. Plaintiffs cited cases involving monitoring of and frequent visits for symptoms and complaints arising from the condition out of which the action arises are readily distinguishable. For example, in plaintiffs cited case of Flint v. Zielinski, 13 0 AD3 d 1460 (4th Dept. 20 15), the plaintiff argued that the cause of action accrued when defendant failed to take steps based on findings in a CT scan taken in May 2002, over two and a half years before the action was commenced. !d. at 1460. But the plaintiff had returned to the defendant for subsequent monitoring for metastasis of breast cancer to the chest area, through December 2007. !d. at 1462-1463. Defendant oncologist directed her to return for this monitoring since the plaintiff had decided to forego chemotherapy. !d. at 1461. The court concluded that an issue of fact was raised as to whether defendant's monitoring of the decedent for cancer, and his relationship with her from 2005 to 2007, was continuous treatment for the same original condition or complaint. !d. at 1462. To the contrary, Dr. Luzi did not direct plaintiff to return for monitoring appointments. In fact, in the four years after her last post-operative visit for her decompression/rotator cuff repair surgery, she had only two visits to Dr. Luzi, both initiated by her: on September 5, 2003, for a check after being pushed and on April 28, 2006, when she resumed care and treatment with him after a 32 month absence. 6 Plaintiffs cited case of Chestnut v. Bobb-McKoy, 94 AD3d 659 (1st Dept. 2012) is also distinguishable. There, the court found triable issues of fact as to continuous treatment since the plaintiff saw the defendant four times, "often at very short intervals," during "a relatively short period" of 13 months. Id. at 662. Part of that care was timely sued. The court held that a question of fact existed as to whether defendant was "consistently treating and/or monitoring" the decedent for specific symptoms related to lung cancer when he saw her repeatedly during that 13 months. Id. at 661. To the contrary, following her follow-up course of treatment for decompression/rotator cuff repair surgery, plaintiff Lohnas was not repeatedly and consistently monitored and treated by Dr. Luzi, nor did he treat her over a short period of months, with many appointments. To the contrary, she saw him only twice over four years, with long gaps between visits, before she returned in April 2006. Her only timely sued visit, absent a finding of continuous treatment, is the April 28, 2006 visit when she resumed treatment with defendant. Simply put, the September 5, 2003 visit was discrete and complete, and related solely to complaints and symptoms after being recently pushed against a wall. It was not part of a continuing course of treatment or a consistent monitoring of the shoulder. Under the undisputed facts, the nature of the September 2003 office visit precludes a finding of continuous treatment as of that date, as a matter of law. 7 B. There was no continuous treatment after September 5, 2003, since no future treatment was explicitly anticipated. There was no continuous treatment after September 5, 2003. This is because the undisputed facts show that no future appointment or treatment was scheduled or explicitly anticipated at that visit. No future surgery was discussed on that date. And no contacts were had between plaintiff and Dr. Luzi's office during the long 32 month gap between visits. The Court of Appeals has held that continuous treatment exists "only when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the period appointments that characterized the treatment in the immediate past." Curcio v. Kingsboro Medical Group, 88 NY2d 904, 906 (1996), aff'd 63 NY2d 967 (1984). A scheduled future appointment that the plaintiff does not keep can raise a triable issue of fact as to continuous treatment. Richardson v. Orentreich, 64 NY2d 896 (1985). But an "amorphous expectation" that plaintiff will undergo further diagnostic testing in the future does not raise a triable issue of fact. Cox v. Kingsboro Medical Group, 88 NY2d 904, 907 (1996). Here, no future appointment was scheduled; plaintiff Lohnas was to return only "as needed." Plaintiffs cited case of Au/ita v. Chang, 44 AD3d 1206 (3rd Dept. 2007) is highly instructive. There, the plaintiff first presented to a urology group in 1999 with 8 back, bladder, testicular, and abdominal pain, and was ultimately diagnosed with kidney cancer four years later. In holding that the plaintiff raised a triable issue of fact as to continuous treatment with respect to his later treatment with the group, the Aulita facts are readily distinguishable. The Aulita court found evidence that the plaintiff had not expressed an intention to abandon treatment with defendants and that the two defendants considered themselves actively involved in the plaintiffs care during the time in question. Aulita, 44 AD3d at 1209. Plaintiffs intention to continue treating with defendants was shown by scheduled appointments with defendants during that gap, even if the plaintiff did not attend them, and by having ultrasound results sent to one of the physicians. I d. Defendants' intention to continue treating the plaintiff was shown by one of the physician's office note at the end of the gap in treatment indicating he had been monitoring the patient's progress, had discussed plaintiffs latest test results with him, and had planned to actively pursue treatment options for him. ld. The other physician had a note that he intended to continue treating and monitoring the plaintiff in the future. I d. To the contrary, plaintiffLohnas did not have any scheduled appointment with defendant as of September 5, 2003. She testified that she understood she was to return "as needed." (R582). She abandoned pursuing any care and treatment by Dr. Luzi by not returning for 32 months despite doing "terrible." (R591). As a result, 9 she did not have an "uninterrupted reliance" on Dr. Luzi overseeing her care, treatment and progress during this time. Allende v. New York City Health Hasps. Corp., 90 NY2d 333, 338 (1997). To the contrary, she abandoned his oversight of her progress. That Dr. Luzi did not anticipate further treatment of plaintiff as of the September 2003 office visit is shown by the undisputed facts. He did not schedule a future appointment for plaintiff. (R161-162; 577-583). He took x-rays, diagnosed a shoulder strain and contusion, and discharged her with instructions to see him on an "as needed basis." (R161-162). His office Iiote confirms that she had done reasonably well since he saw her 17 months before, and had only recently developed discomfort after being pushed against a wall. (R161). There is no evidence of a discussion of future surgery. (R161-162; 577-583). Dr. Luzi "did not contemplate any further treatment of the plaintiff at this time." (R308 at 1[24; italics added). Thus, the evidence does not support that Dr. Luzi considered himself actively involved in the plaintiffs care going forward, or that he intended to regularly monitor her progress. She was to return only as needed. Dr. Luzi's April2002 "To Whom it May Concern" letter to plaintiffLohnas's health insurer, Univera, opining that she most likely will need future surgery does not raise a triable issue of fact regarding continuous treatment. (R897). Finding support for continuous treatment in this letter would lead to an impractical holding 10 that when a physician opines that his patient may someday be a candidate for a future procedure, then that patient falls under the physician's continuous care and treatment indefinitely. As a result, physicians may be disinclined to opine about a patient's future medical needs if doing so extends the statute of limitations indefinitely. Plaintiffs argument that a triable issue of fact exists because Dr. Luzi told her that she may have "periodic" symptoms, or because Dr. Luzi considered her problems "longstanding" and "chronic," is misguided. (Respondent's Brief at 9, R164-165). Continuous treatment requires continuing efforts to treat the condition, and without such continuing efforts, the doctrine does not apply. Massie v. Crawford, 78 NY2d 516, 519 (1991) rearg. denied 79 NY2d 978 (1992). That a patient may have longstanding or chronic problems, and experience periodic symptoms, does not necessarily mean that the physician is continuously treating the patient's condition, or that the patient is continuously relying on that physician's ongoing care and treatment. Nor does Dr. Luzi's instruction to return "as needed" raise a triable issue of fact regarding the continuous treatment doctrine. Aulita, supra, is highly instructive on this point when it considered whether the doctrine applied to earlier care in 1999. In 1999, another group physician diagnosed plaintiffs back, bladder, testicular, and abdominal pain as a hernia problem, and told plaintiff he would see him on an "as- needed basis if we identify any urologic problems." Au! ita, 44 AD3d at 1206. But 11 no further appointments were scheduled. !d. The Aulita court held there was no continuous treatment reaching back to 1999. !d. at 1209-121 0. Important to the court was that "no follow-up appointments were contemplated," and thus no further treatment was "explicitly anticipated by both the patient and the physician." !d. at 1210 (citation omitted). Under the circumstances, the later treatment by the urology group was considered a "resumption" of treatment, and not a continuation of the prior care. !d. (citation omitted). Likewise, Dr. Luzi's instruction to the plaintiff to return "as needed" does not raise a triable issue of fact as to whether both plaintiff and defendant explicitly anticipated future treatment. This "as needed" instruction is akin to the "amorphous expectation" of the need for future testing that, in Cox v. Kingsboro Medical Group, supra, the Court of Appeals held was not enough to raise an issue of fact as to continuous treatment. Cox, 88 NY2d at 907. Plaintiff has failed to raise a triable issue of fact that both plaintiff and Dr. Luzi explicitly anticipated future treatment as of September 5, 2003, as in the form of a future appointment. The undisputed facts show that from September 5, 2003, to April 28, 2006, the plaintiff had no scheduled return appointments, initiated no appointments with Dr. Luzi, and received no further treatment from him. Plaintiffs return to Dr. Luzi in April 2006 was a "resumption" of treatment, not a continuation of it. 12 C. Plaintiff's lack of trust and confidence m defendant broke any continuity of treatment. Assuming, ad arguendo, that continuity of treatment existed on September 5, 2003, then it was broken by plaintiffs lack of trust and confidence in Dr. Luzi during the ensuing 32 months. Trust and confidence underlie the. continuous treatment doctrine and, without them, the continuous treatment doctrine cannot apply. The doctrine's policies must be implicated for it to be invoked. See Rizk v. Cohen, 73 NY2d 98, 104 (1989) (citation omitted). Those policies permit a patient to continue treating with her physician without running afoul of the statute of limitations [Edmonds v. Getchonis, 150 AD2d 879, 881(3rd Dept. 1989)], and also permit the physician time to correct an earlier mistake in treatment since the physician is considered best placed to do so [McDermott, 56 NY2d at 408]. Those policies are not implicated here. Plaintiffs own testimony shows she lacked trust and confidence in Dr. Luzi during her long break in treatment since she abandoned pursuing further care and treatment from him. A patient does not have continuing trust and confidence in a physician when she has "gotten discouraged with him" and tells her primary care physician that she "really didn't want to go back to him because he keeps putting me off," and then she, in fact, does not go back to him for 32 months, despite her claimed "terrible" condition, and even though the physician has instructed her to return "as needed." (R586, 591). A patient will not be found to have continuing trust and 13 confidence in her physician where, as here, she chooses not to return because she does not have "faith" in the provider anymore. See Allende, 90 NY2d at 338. Plaintiff had no contacts with Dr. Luzi or Northtowns Orthopedics during this treatment gap, including no phone calls or receipt of correspondence or any other involvement of any kind. (R642-643). And she did not heed Dr. Luzi's advice to return "as needed," even though she claims her shoulder was "terrible," with bad pain and worsening range of motion, and she had to wear a sling. (R591). During this long gap, Dr. Luzi was not providing the plaintiff with any continuing treatment or corrective efforts for symptoms or complaints related to her 1999 surgery or 2002 surgery, nor was the plaintiff relying on him to do so. She, therefore, was not confronted with the dilemma of choosing between accepting continued corrective treatment from Dr. Luzi, with the risk of a time-barred claim, or promptly instituting an action, with the risk of destroying the physician-patient relationship. See Rizk, 73 NY2d at 104. She would not have jeopardized anything by suing defendant at this time, if she believed him guilty of malpractice. Massie, 78 NY2d at 520. There simply was no continuing care or treatment or corrective efforts by defendant to interrupt. In the absence of continuing efforts to treat the plaintiffs condition, the continuous treatment toll does not apply. Massie, 78 NY2d at 519 (citations omitted). 14 As the dissenting justice in the Appellate Division stated, plaintiff Lohnas' s testimony "established that for over two and a half years she neither believed nor expected that defendant was making, or would make, any continuing efforts to treat her shoulder problems." (R.8a). Furthermore, by choosing not to return, she did not g1ve Dr. Luzi an opportunity to identify and address her complaints and symptoms, treat her, and correct any earlier mistake in treatment. A policy concern underlying the continuous treatment doctrine is to permit the patient to continue treatment with the doctor in the recognition that the doctor is best placed to identify and correct his or her malpractice. McDermott, 56 NY2d at 408. This policy concern is not implicated here since plaintiff chose not to return to Dr. Luzi and not to seek corrective efforts from him during the lengthy gap in visits. This case presents the risk of extending the limitations period indefinitely, to cover the remainder of the patient's life. Plaintiffs cited case of Massie, supra, warned against extending the statute of limitations to cover the entirety of a fifteen year relationship and, conceivably, the remainder of the patient's life where, as is the case here, there is "no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if she believed defendant guilty of malpractice." Massie, 78 NY2d at 520. 15 If continuous treatment existed on September 5, 2003, which we dispute, it was broken during plaintiffs long treatment gap since she lost trust and confidence in defendant, and abandoned pursuing care and treatment by him for a lengthy gap of32 months. As a result, she was not relying on his oversight of her progress, and was not confronted with the dilemma that the continuous treatment doctrine was intended to address. Since its underlying policies are not implicated, the doctrine cannot apply here. D. Plaintiffresumed treatment on April 28, 2006, as opposed to continuing it. Even if this Court declines to hold that a treatment gap exceeding the length of the statute of limitations is "per se" dispositive, the plaintiffs lengthy gap in treatment, and the circumstances surrounding it, establish that she did not instigate a timely return visit and that she resumed, rather than continued, treatment on April 28, 2006. As an initial matter, we dispute plaintiffs assertion that the Appellate Division, Second Department rule that a treatment gap exceeding the statute of limitations' length breaks continuity as a matter of law is a result of faulty interpretations of prior case holdings. (Respondent's Brief, pp. 52-56). This rule has been repeatedly, explicitly stated by the Second Department. See Bennin v. Ramapo Gen Hasp., 72 AD2d 736 (2nd Dept. 1979) ("[w]hen the period between such treatments, however, exceeds the limitations period, the doctrine is inapplicable"); 16 Barrella v. Richmond Memorial Hasp., 88 AD2d 379, 384 (2nd Dept 1982) ("[w]e know that treatment is not continuous when the interval between treatments exceeds the limitations period"); Sherry v. Queens Ktdney.Center, 117 AD2d 663, 664 (2nd Dept. 1986) ("treatment is not considered continuous when the interval between treatments exceeds the period of limitation") and Bulger v. Nassau County Medical Center, 266 AD2d 212 (2nd Dept. 1999) ("[w]hen the gap between treatments exceed[ s] the applicable Statute of Limitations period, the continuity of treatment [is] broken, and the continuous treatment doctrine does not apply"). As the courts stated in Grellet v. City of New York, 118 AD2d 141, 149 (2nd Dept. 1986) and Marmo! v. Green, 7 AD3d 682 (2nd Dept. 2004), it is "the rule in the Second Department" that the continuous treatment doctrine is inapplicable where the interval of time between visits or treatments exceeds the applicable statute of limitations. And in Bulger and Marmo!, supra, the Second Department continued to reference this rule, despite the Massie holding in 1991 that the interval between treatments is not "per se" dispositive. Massie, 78 NY2d at 519. Subsequently, in Gomez v. Katz, 61 AD3d 109 (2nd Dept. 2009), the Second Department still relied on that rule when it surveyed the case law for the length of gaps where a triable issue of fact had been found with respect to continuous treatment. See id. It found that none of those gaps was longer than 27 months, and that since the 24 month gap at issue did not "exceed the limits of decisional 17 authority," it could not hold the continuous treatment doctrine inapplicable as a matter of law. !d. at 117. The Court of Appeals has held that the interval b~tween visits is not "per se dispositive" of a claim that the statute has run. Massie, 78 NY2d at 519. But it has also held that the plaintiff must initiate a "timely return visit" for continuous treatment to exist. See Curcio, 63 NY2d 967 and McDermott, 56 NY2d at 406. Plaintiff's cited case of Curcio, supra, is instructive as to what constitutes a timely return visit. Curcio involved a 3 7 month gap, which exceeded the limitations' length. Curcio, 63 NY2d at 968. The Court of Appeals held there was no continuous treatment since plaintiff failed to instigate a "timely return visit" to complain about and seek treatment for a matter related to the initial treatment. !d. at 969 (citations omitted). The Court found it unnecessary, however, to find that in "every instance" the passing of a period longer than the applicable statute of limitations will time bar the action. !d. at 969. But it found that where the plaintiff was discharged from nose surgery and did not return until 3 7 months later with breathing complaints, and had no contacts during those months, there was no continuous treatment, as a matter of law. !d. at 969. Similarly, plaintiffLohnas's absence for 32 months with no contacts whatsoever, after having been seen for a discrete and complete visit for a "check" of her shoulder after being pushed against a wall, fails to demonstrate a timely return visit. 18 Also, plaintiff Lohnas' s substantial temporal gaps in treatment break continuity, and lead to the conclusion that she resumed, rather than continued treatment on April 2006. As stated in plaintiffs cited case of Grellet, supra, the continuous treatment doctrine does not contemplate "intermittent treatment where substantial gaps of time exist between consultations." Grellet, 118 AD2d at 148 (citations omitted). In the absence of a timely return visit, meaning "soon after the initial treatment," subsequent visits may be viewed as "intermittent" rather than "continuous medical services." !d. (citations omitted). Substantial gaps in treatment break continuity, and the latter visit may be viewed as a "resumption of treatment rather than a continuation of the prior treatment." !d. at 149 (citations omitted). See also Sherry, 11 7 AD2d at 665 (holding that the fact that plaintiff allowed almost three years to elapse between treatments the led to conclusion that the return visit was a "resumption of treatment" rather than a continuation of it). Plaintiffs cited case of Peykarian v. Yin Chu Chien, 109 AD3d 806 (2nd Dept. 2013), also found no issues of fact regarding continuous treatment where there were long gaps in treatment. There, plaintiffs decedent received treatment from the defendant over 17 years for recurrent bladder tumors. !d. at 807. Decedent returned only when he was symptomatic, with blood in his urine, and he did not visit at all with defendant during two long gaps. !d. As a result of the gaps, because decedent "did not continue to seek a course of treatment," the court found no evidence of 19 continuous treatment. Id. Similarly, plaintiff Lohnas's long gaps in treatment, during which she did not continue to seek a course of treatment, support that treatment was not continuous. Plaintiffs cited case of Devadas v. Niksarli, 120 AD3d 1000 (1st Dept. 2014), is distinguishable, as it involved the unique facts of a Lasik eye surgery, the effective results of which the defendant ophthalmologist guaranteed for life. I d. at 1004. The defendant stated that he was the plaintiffs doctor "for life" for the purpose of this Lasik surgery to correct the plaintiffs blurry vision. I d. At trial, the jury decided that the continuous treatment doctrine applied, and the Appellate Division, First Department found sufficient evidence supporting the jury's finding. Id. at 1003. It found a sufficient basis for the jury to find an ongoing relationship of trust and confidence between plaintiff and defendant during the 33-month treatment gap based on the evidence that defendant was the plaintiffs ophthalmologist "for life" and had guaranteed the efficacy of the surgery. Id. at 1006. To the contrary, Dr. Luzi did not present himself as plaintiffs shoulder surgeon "for life," nor did he guarantee the surgical results. And, unlike in Devadas, the facts here establish that plaintiffLohnas did not have ongoing trust and confidence in Dr. Luzi during her long absence from his care when she chose not to return to him because she was "discouraged" and "really didn't want to go back." (R586, 591) .. 20 Plaintiffs cited cases of Edmonds v Getchonis, 150 AD2d 879 (3rct Dept. 1989) and Fonda v. Paulsen, 46 AD2d 540 (3rd Dept. 1975), are distinguishable since, in both cases, the three year statute of limitations had not yet expired when the plaintiff returned to the physician. In Edmonds, the court held that triable issues of fact existed as to continuous treatment, especially since the three-year statute of limitations had yet to expire, so the plaintiff was faced with the precise dilemma the doctrine was designed to address - either pursue corrective treatment and risk the expiring statute, or sue and break the relationship. Edmonds, 150 AD2d at 881. When plaintiffLohnas decided to resume treatment with Dr. Luzi in April2006, the statute of limitations had already expired. Under all the facts presented, plaintiff Lohnas failed to instigate a timely return visit to Dr. Luzi when she returned on April 28, 2006. In fact, in the four years that had passed since she saw Dr. Luzi for her last post-operative visit for rotator cuff surgery in April 2002, she had seen Dr. Luzi only once - for a check of her shoulder in September 2003, after being pushed against a wall. When she decided to return 32 months later, on April 28, 2006, after a substantial gap in treatment, she resumed treatment; she did not continue it. E. The Appellate Division's decision is within this Court's scope of review Review of whether the continuous treatment doctrine applies is within the Court's scope of review. Plaintiffs cited cases of Stiles v. Batavia Atomic 21 Horseshoes, Inc., 81 NY2d 950 (1993), Allende v. New York City Health and Hasps. Corp., 90 NY2d 333 (1997); and Cannon v. Putnam, 76 NY2d 644 (1990) are wholly inapposite. They held that the Court of Appeals may not review a finding of fact that has been affirmed by the appellate division if the finding of fact is supported by the evidence. But here the Appellate Division did not affirm any findings of fact below. In its Memorandum and Order, the Appellate Division stated that, to determine whether plaintiff has raised a triable issue of fact as to the applicability of the continuous treatment doctrine, it must accept plaintiff Lohnas' s "version of the facts" as true. (R6a). Then the Appellate Division held that, accepting them as true, the plaintiff raised triable issues of fact. (R6a). But the Appellate Division did not make any findings of fact with respect to the facts relating to application of the continuous treatment doctrine. PlaintiffLohnas confuses a "finding of fact" with a finding that "triable issues of fact" exist. Here, the Court of Appeals is not presented with a finding of fact made by the trial court that has been affirmed by the appellate division, and beyond this Court's scope of review. This Court has the power to review matters of law. The matters of law presented on this appeal are detailed in this brief and defendant's initial brief. (See Appellant's Brief, p. 4). And they are within this Court's scope of review. 22 POINT II PLAINTIFF MAY NOT ARGUE EQUITABLE ESTOPPEL SINCE PLAINTIFF DID NOT APPEAL Plaintiff has improperly included un-appealed arguments in her Respondent's Brief. The Appellate Division unanimously dismissed the plaintiffs claim that the defendants are equitably estopped from asserting the statute of limitations defense, as a matter oflaw. (R5a). In doing so, it held that the plaintiff"failed to submit any proof that she was induced by fraud, misrepresentation or deception" from filing a timely action. (R7a). Yet Respondent's Brief is replete with arguments supporting this un-appealed issue. Defendants moved in the Appellate Division, Fourth Department for leave to appeal to the Court of Appeals, and were granted such leave. (R3a). They sought review of the Appellate Division's ruling that triable issues of fact exist as to the application of the continuous treatment doctrine. On the other hand, the plaintiff did not move for leave to appeal, and did not seek review of the ruling dismissing the equitable estoppel claim. Plaintiff simply cannot argue equitable estoppel on this appeal. Defendants are the only appellants before this Court. The Court must completely disregard plaintiffs Question Number 2, all arguments made in Point II, all facts accompanying those arguments,· and the plaintiffs list of "alleged mispresentations and concealment." (Respondent's Brief at 1, 33-34, 57-61 ). That question and those arguments are improperly raised. Much 23 of Respondent's Brief at pages 30-34 improperly addresses the un-appealed equitable estoppel issue. Again, the plaintiff's equitable estoppel claim was unanimously rejected and dismissed by the Appellate Division. (R6a-7a). Plaintiff's inclusion of these rejected arguments in her Respondent's Brief is a disingenuous and prejudicial attempt to bring negative and impugning arguments to the fore of an appeal of a separate issue, and should not be countenanced. Plaintiff's Respondent's Brief must be wholly disregarded as to those matters. CONCLUSION Consideration of the undisputed facts compels the conclusion that no continuous treatment existed as of September 5, 2003, or after, as a matter oflaw. Plaintiff's office visit on September 5, 2003, was for the sole purpose of checking her shoulder after having been pushed, and for complaints and treatment of a shoulder strain and contusion from having been pushed. This visit was not related to the same complaints, symptoms or conditions of the earlier visits with respect to the 1999 surgery or the 2002 surgery. As of September 5, 2003, the plaintiff and the defendant did not both explicitly anticipate further treatment by Dr. Luzi, as no further appointment was scheduled. Neither Dr. Luzi's instruction to return "as needed" nor his past contemplation of the possibility that the plaintiff may someday need future surgery raises a triable 24 issue of fact that future treatment was explicitly anticipated by both the plaintiff and the defendant on September 5, 2003. During her 32 month absence, plaintiff deliberately chose not to return "as needed," despite her claimed "terrible" symptoms. Her abandonment of pursuing further care and treatment during this time because she "didn't really want to go back" to the defendant demonstrates her loss of trust and confidence in him, and that she was not relying on his continued oversight of her treatment and progress. There was no care and treatment to interrupt if she had chosen to sue Dr. Luzi for malpractice, and Dr. Luzi was not given the opportunity to make continued corrective efforts during this time. Since the policy concerns underlying the continuous treatment doctrine are not implicated here, the doctrine cannot apply. Plaintiffs return on April 28, 2006, after having had no contacts with the defendants for 32 months, a gap longer than the applicable statute oflimitations, was not a timely return visit as a matter of law. Her care and treatment with defendant after April 2002 was characterized by substantial gaps in visits, and not by frequent monitoring of her condition. When she returned in April2006, after having seen him only once in the past four years, it was to resume treatment, not to continue it. For the foregoing reasons, the continuous treatment doctrine does not apply, as a matter of law. 25 We respectfully request that this Court reverse the Appellate Division's ruling that triable issues of fact exist as to whether the continuous treatment doctrine applies, and hold there was no continuous treatment, as a matter of law. Then, . defendants' motion for partial summary judgment, dismissing the complaint insofar · as it alleges acts and or omissions before March 30, 2006, should be granted. Dated: April 14, 2017 Buffalo, New York Respectfully submitted, THE TARANTINO LAW FIRM, LLP By: 26 Attorneys for Defendants-Appellants 1500 Rand Building 14 Lafayette Square Buffalo, New York 14203 (716) 849-6500 STATE OF NEW YORK COURT OF APPEALS DARLENE M. LOHNAS, Plaintiff, vs. FRANK A. LUZI, JR., M.D., and NORTHTOWNS ORTHOPEDICS, P.C. Defendants. CERTIFICATION ofWORD COUNT pursuant to Rule 500.13(c) APL- 2016-00186 I, the undersigned, an attorney at law admitted to practice before the courts of the State of New York, hereby certify in accordance with 22 NYCRR 500.13(c), that the Reply Brieffiled on behalf of the defendants in the above-captioned action does not exceed 7,000 words, and that the total word count of said Reply Brief, according to the word-processing system used to prepare the brief, is 6,156. Dated: Buffalo, New York April14, 2017 THE TARANTINO LAW FIRM, LLP 'd /1//IM;,, ' By: ~J?~ Tamsin J. Hager, sq., counsel Attorneys for Defendants-Appellants Frank A. Luzi, Jr., MD., and Northtowns Orthopedics, P. C. 1500 Rand Building, 14 Lafayette Square Buffalo, New York 14203 (716) 849-6500