Diller v. Munchmeyer
| Decision Date | 14 May 1987 |
| Citation | 515 N.Y.S.2d 642,130 A.D.2d 868 |
| Parties | Russell DILLER et al., Appellants, v. Louis MUNCHMEYER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lee S. Michaels (John V. Bell, of counsel), Auburn, for appellants.
Levene, Gouldin & Thompson (John J. Pollock, of counsel), Binghamton, for respondent.
Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal (1) from an order of the Supreme Court (Swartwood, J.), entered August 13, 1986 in Tompkins County, which granted defendant's motion for summary judgment dismissing the complaint, and (2) from the judgment entered thereon.
The sole issue on appeal is whether plaintiffs can successfully invoke the continuous treatment doctrine in order to avoid having their suit barred by the 2 1/2-year Statute of Limitations applicable to medical malpractice actions (see, CPLR 214-a). Plaintiff Russell Diller (hereinafter plaintiff) last saw defendant for his heart condition in February 1982. He allegedly telephoned defendant's office on May 7, 1982 and received medical advice. Disgruntled with the treatment he was receiving, plaintiff went to Rochester for treatment on May 11, 1982 and, upon returning to Ithaca, started seeing another physician, Dr. Timothy Cardena. In June 1983, plaintiff was admitted to Tompkins Community Hospital. The hospital records indicate that plaintiff stated that Cardena was his doctor and that he was a former patient of defendant. Since Cardena was unavailable, plaintiff attempted to contact defendant's office. Defendant was not in, thus Dr. C. Judson Kilgore agreed to see defendant. Kilgore shares office space with defendant, although they are not partners. After being discharged from the hospital, plaintiff continued to see Cardena and did not return to defendant's office.
Plaintiff commenced this medical malpractice action against defendant on November 26, 1984. Following discovery, defendant moved for summary judgment on the ground that the action was barred by the Statute of Limitations. Supreme Court granted the motion and this appeal ensued.
In order for plaintiff to bring defendant's alleged malpractice within the 2 1/2-year Statute of Limitations period, Kilgore's treatment of plaintiff in June 1983 must be imputed to defendant and that treatment must be deemed a continuation of defendant's previous treatment.
We consider first whether Kilgore's treatment can be imputed to defendant. A doctor's treatment can be imputed to another doctor for purposes of the continuous treatment doctrine if the nexus between the two physicians is sufficient to impute liability (see, Ruane v. Niagara Falls Mem. Med. Center, 60 N.Y.2d 908, 909, 470 N.Y.S.2d 576, 458 N.E.2d 1253). Here, the record reveals that Kilgore and defendant share office expenses and cover for each other's patients. These facts do not establish a sufficient relationship between the physicians to impute liability (see, Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79, 499 N.Y.S.2d 904, 490 N.E.2d 823), and thus it follows that plaintiff has failed to establish that Kilgore's treatment should be imputed to defendant.
We further note that even if we were to find the existence of a question of fact as to whether...
To continue reading
Request your trial
-
Pomygalski v. Eagle Lake Farms, Inc.
...not been preserved for our review (see, Szigyarto v. Szigyarto, 64 N.Y.2d 275, 486 N.Y.S.2d 164, 475 N.E.2d 777; Diller v. Munchmeyer, 130 A.D.2d 868, 869, 515 N.Y.S.2d 642, lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308; Matter of Schiavone Constr. Co. v. Larocca, 117 A.D.2d ......
-
Clifford v. Kates
...treatment (see Alvarez v. New York City Health and Hosps. Corp., 257 A.D.2d 516, 517 [1st Dept 1999] ; Diller v. Munchmeyer, 130 A.D.2d 868, 869, 515 N.Y.S.2d 642 [3d Dept 1987] ). As the tolling time ended after the January 14, 2009 visit, Plaintiff's commencement of the action on December......
-
Ganapolskaya v. v. I.P. Medical Associates
...N.Y.2d 992, 994, 510 N.Y.S.2d 560, 503 N.E.2d 115; Ogle v. State of New York, 142 A.D.2d 37, 40, 535 N.Y.S.2d 190; Diller v. Munchmeyer, 130 A.D.2d 868, 869, 515 N.Y.S.2d 642, lv. denied 70 N.Y.2d 605, 519 N.Y.S.2d 1028, 513 N.E.2d 1308; Modzelewski v. Kingsbrook Jewish Med. Ctr., 120 A.D.2......
-
Pierre-Louis v. Hwa
...of tolling the Statute of Limitations (see, e.g., Evra v. Hillcrest Gen. Hosp., supra; Swartz v. Karlan, supra; Diller v. Munchmeyer, 130 A.D.2d 868, 515 N.Y.S.2d 642). Further, unlike in Watkins v. Fromm, supra, there is no proof here that the defendants and their successors practiced as a......