Adam v. Park Ridge Hosp., 3

• Decision Date: 07 May 1999
• Docket Number: No. 3,3
• Citation: 690 N.Y.S.2d 381,261 A.D.2d 862
• Parties: 1999 N.Y. Slip Op. 4340 Marilyn ADAM, Plaintiff-Appellant, v. PARK RIDGE HOSPITAL, Park Ridge Health System, Inc., Defendants-Respondents, et al., Defendant. (Appeal)
• Court: New York Supreme Court — Appellate Division

Page 381

690 N.Y.S.2d 381

1999 N.Y. Slip Op. 4340

Marilyn ADAM, Plaintiff-Appellant, v. PARK RIDGE HOSPITAL, Park Ridge Health System, Inc., Defendants-Respondents, et al., Defendant. (Appeal No. 3.)

Supreme Court, Appellate Division, Fourth Department, New York.

May 7, 1999.

Leo Finucane, Pittsford, for plaintiff-appellant.

Jeffrey Wilkens, Rochester, for defendants-respondents.

PRESENT: PINE, J.P., HAYES, WISNER, PIGOTT, JR. and HURLBUTT, JJ.

MEMORANDUM:

Supreme Court properly granted the motion of Park Ridge Hospital (Hospital) and Park Ridge Health System, Inc. (collectively defendants) for summary judgment dismissing the complaint against them as time-barred and denied plaintiff's cross motion to dismiss the affirmative defense of the Statute of Limitations. Defendants established that the action was commenced after the Statute of Limitations had expired, and plaintiff failed to meet her "burden of demonstrating the existence of triable issues of fact when [she] argued that the doctrine of continuous treatment tolled the Statute of Limitations" (Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 906, 646 N.Y.S.2d 659, 669 N.E.2d 817; see, Blythe v. City of New York, 119 A.D.2d 615, 501 N.Y.S.2d 69, lv. denied 69 N.Y.2d 604, 512 N.Y.S.2d 1027, 504 N.E.2d 698). Plaintiff failed to raise an issue of fact whether there was a mutual expectation of additional treatment following her discharge from the Hospital on September 2, 1994 (see, Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 338-339, 660 N.Y.S.2d 695, 683 N.E.2d 317; Richardson v. Orentreich, 64 N.Y.2d 896, 898-899, 487 N.Y.S.2d 731, 477 N.E.2d 210). Nor did she raise an issue of fact whether there was an agency or other relationship between the Hospital and the Visiting Nurse Service, to which plaintiff was referred for home care, to create a nexus between the two providers sufficient to impute treatment by the Visiting Nurse Service to the Hospital (see, De Peralta v. Presbyterian Hosp., 121 A.D.2d 346, 348-349, 503 N.Y.S.2d 788). The physical therapy received by plaintiff at the Hospital in December 1994 upon the referral of her orthopedist was not a continuation of treatment by the Hospital, but rather was a renewal of treatment previously terminated (see, Rizk v. Cohen, 73 N.Y.2d 98, 105, 538 N.Y.S.2d 229, 535 N.E.2d 282; Ushkow v. Brodowski, 244 A.D.2d 931, 665 N.Y.S.2d 149).

Order unanimously affirmed without costs.