Cox v. Kingsboro Medical Group

• Decision Date: 11 June 1996
• Citation: 646 N.Y.S.2d 659,669 N.E.2d 817,88 N.Y.2d 904
• Parties: , 669 N.E.2d 817 Winston COX et al., Appellants, v. KINGSBORO MEDICAL GROUP et al., Defendants, and Brookdale Surgical Associates et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 659

646 N.Y.S.2d 659

88 N.Y.2d 904, 669 N.E.2d 817

Winston COX et al., Appellants, v. KINGSBORO MEDICAL GROUP et al., Defendants, and Brookdale Surgical Associates et al., Respondents.

Court of Appeals of New York.

June 11, 1996.

Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac and Allen H. Isaac, of counsel), for appellants.

Aaronson Rappaport Feinstein & Deutsch, L.L.P., New York City (Steven C. Mandell, of counsel), for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). Respondents satisfied that burden by demonstrating that they were served with the complaint after the expiration of the two-year-and-six-month Statute of Limitations period for the medical malpractice claims at issue here (see, CPLR 214-a). Consequently, appellants bore the burden of demonstrating the existence of triable issues of fact when they argued that the doctrine of continuous treatment tolled the Statute of Limitations for those claims.

The continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action "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" (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777). Where there is a direct physician-patient relationship, 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 periodic appointments which characterized the treatment in the immediate past" (Richardson v. Orentreich, 64 N.Y.2d 896, 898-899, 487 N.Y.S.2d 731, 477 N.E.2d 210).

Appellants have failed to show that both Levowitz and appellant Winston Cox (the patient) "explicitly anticipated" that Levowitz would continue to treat Cox. Instead, the record demonstrates, at best, that Cox possessed an amorphous expectation that he would undergo further...