Digiaro v. Agrawal

• Court: New York Supreme Court — Appellate Division
• Citation: Digiaro v. Agrawal, 41 AD3d 764, 839 N.Y.S.2d 212, 2007 NY Slip Op 5678 (N.Y. App. Div. 2007)
• Decision Date: 26 June 2007
• Docket Number: 2006-02723.
• Parties: ANN DIGIARO, Respondent, v. KISHORE AGRAWAL et al., Defendants, and VINCENT M. SOTTILE, Appellant.

41 A.D.3d 764

839 N.Y.S.2d 212

2007 NY Slip Op 05678

ANN DIGIARO, Respondent, v. KISHORE AGRAWAL et al., Defendants, and VINCENT M. SOTTILE, Appellant.

2006-02723.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided June 26, 2007.

In an action to recover damages for medical malpractice, the defendant Vincent M. Sottile appeals from so much of an order of the Supreme Court, Richmond County (Minardo, J.), dated February 9, 2006, as, upon reargument, adhered to so much of a prior determination of the same court in an order dated June 13, 2005, as denied that branch of his motion, made jointly with the defendant Kishore Agrawal, which was for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by deleting the provision thereof, which, upon reargument, adhered to so much of the original determination in the order dated June 13, 2006, as denied that branch of the motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon alleged acts of medical malpractice occurring before November 26, 1997, against the defendant Vincent M. Sottile and substituting therefor a provision, upon reargument, vacating that portion of the original determination and granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As a general rule, we do not consider an issue raised on a subsequent appeal that was raised on a prior appeal or could have been raised on a prior appeal which was dismissed for lack of prosecution, although the court has the inherent jurisdiction to do so (see Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999]; Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]; Bray v Cox, 38 NY2d 350, 353 [1976]; Sargent v Klein & Eversoll, Inc., 31 AD3d 736, 737 [2006]). The appellant Vincent M. Sottile appealed from an order dated June 13, 2005, which, inter alia, denied that branch of his motion made jointly with the defendant Kishore Agrawal, which was for summary judgment dismissing the complaint insofar as asserted against him. In a superseding order, the court granted the appellant's motion to reargue and, upon reargument, adhered to its prior determination. This appeal is from the superseding order. In the interim, the earlier appeal was dismissed by decision and order on motion of this Court dated March 16, 2006, for failure to perfect in accordance with the rules of this Court (see 22 NYCRR 670.8 [h]). The better practice would have been for the appellant to withdraw the prior appeal, rather than abandon it. Nonetheless, we exercise our discretion to review the issues raised on the appeal from the order made upon reargument (see Tierney v Drago, 38 AD3d 755 [2007]; Cesar v Highland Care Ctr., Inc., 37 AD3d 393 [2007]).

The appellant, a gastroenterologist, first saw the plaintiff in late 1996 and early 1997 for complaints of rectal bleeding. He performed a colonoscopy and ordered a barium enema. Based on these procedures, he diagnosed that the bleeding was caused by several large internal hemorrhoids. The plaintiff returned with the same complaint on November 26, 1997. In a series of visits from that date through February 18, 1998, the appellant removed the hemorrhoids by ligation. He did not perform another colonoscopy or order another barium enema. On January 15, 1999, the plaintiff returned to the appellant's office, this time to consult with him regarding another doctor's diagnosis of a hernia and recommendation that she undergo surgery in connection therewith. During this visit, the plaintiff complained of pain in the lower right quadrant of her abdomen. The appellant performed an external exam, did not find evidence of a hernia, but advised the plaintiff to obtain another opinion. That was the last time the appellant saw the plaintiff as a patient. On April 26, 1999 a CAT exam of the plaintiff's abdomen and pelvis revealed a mass in her cecum. After a colonoscopy performed on May 7, 1999 the mass was diagnosed as an adenocarcinoma.

The plaintiff, who commenced this action on April 27, 2000, relies on the doctrine of continuous treatment to avoid the 2½-year statute of limitations bar with regard to the visits prior to November 26, 1997.

The Supreme Court erred in denying that branch of the motion which was for summary judgment dismissing so much of the complaint as sought to recover damages based upon alleged acts of medical malpractice occurring prior to November 26, 1997.

CPLR 214-a provides, in pertinent part, that "[a]n action for medical ... malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." Thus, where the continuous treatment doctrine applies, "the time in which to bring a malpractice action is stayed `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], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]; see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338 [1997]). The appellant established, as a matter of law, that the course of treatment provided the plaintiff from October 28, 1996 through January 27, 1997...