Ganess v. City of New York

• Decision Date: 12 September 1994
• Citation: 207 A.D.2d 765,616 N.Y.S.2d 510
• Parties: Sean GANESS, etc., Appellant, v. CITY OF NEW YORK, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 510

616 N.Y.S.2d 510

207 A.D.2d 765

Sean GANESS, etc., Appellant, v.CITY OF NEW YORK, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Sept. 12, 1994.

Pegalis & Wachsman, P.C., Great Neck (Steven E. Pegalis and Sanford S. Nagrotsky, of counsel), for appellant.

Paul A. Crotty, Corp.Counsel, New York City(Larry A. Sonnenshein and Elaine Rothenberg, of counsel), for respondentNew York City Health and Hospitals Corp.

BRACKEN, J.P., and MILLER, LAWRENCE and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County(Lonschein, J.), dated May 17, 1991, which granted the motion of the defendantNew York City Health and Hospitals Corporation to dismiss the complaint on the ground that the plaintiff's notice of claim was not timely filed and which denied the plaintiff's cross motion to dismiss the affirmative defense based on the Statute of Limitations.

ORDERED that the order is affirmed, with costs to the respondentNew York City Health and Hospitals Corporation.

The plaintiff was born at Elmhurst General Hospital on August 6, 1973.According to the notice of claim, the plaintiff was born with a condition known as "Erbs Palsy".The plaintiff alleges that this condition and the symptoms related to it could have been avoided "by appropriate prenatal interpartum and neonatal care".In his bill of particulars, the plaintiff specifies numerous instances of alleged medical malpractice relating to the prenatal and neonatal care delivered by the agents of the New York City Health and Hospitals Corporation(hereinafter the HHC), which operates Elmhurst Hospital.

The complaint states that "within ninety (90) days after the Cause of Action accrued"the plaintiff filed a notice of claim.This is manifestly incorrect because the plaintiff's cause of action in fact accrued on August 6, 1973, and no notice of claim was filed until more than ten years later, on May 18, 1984.In their answer, the defendants admitted that a claim was presented to the Comptroller of the City of New York on May 18, 1984.However, they asserted an "affirmative defense" based on allegations that the plaintiff's action had not been commenced "within the time specified in § 7401 of the Unconsolidated Law [sic] of New York State and § 50-i of the General Municipal Law".

On August 1, 1989, the HHC made a motion to dismiss the complaint insofar as asserted against it.The plaintiff cross-moved for an order dismissing the HHC's "Statute of Limitations" defense or, in the alternative, for an order "deeming the Notice of Claim a[s] timely served, nunc pro tunc".In an order dated November 13, 1989, the Supreme Court correctly stated that "the plaintiff's [notice] of claim can be deemed timely only if there was a continuous course of treatment from the birth until not earlier than ninety days before the service of the notice of claim".The court granted the HHC leave to renew its motion in order to present evidence as to the possible applicability of the continuous treatment doctrine.

The HHC renewed its motion to dismiss on June 29, 1990.The HHC submitted the affidavit of Dr. Beatrice Kaplan, who diagnosed the plaintiff's condition on August 7, 1973 and who saw him periodically thereafter.Dr. Kaplan stated that she saw the plaintiff in November of 1979 and August of 1983, but that "nothing was done other than a checking of his condition".

After the HHC renewed its motion to dismiss, the plaintiff renewed his cross motion to dismiss the HHC's affirmative defense based on the Statute of Limitations.In support of this application, the plaintiff's attorney stated that the last "documented" visit (that is, the last visit by the plaintiff to Elmhurst Hospital for which any written record has been produced) occurred on September 21, 1983.The plaintiff's expert physician also asserted, based on his review of those records which had been produced, that the last visit for which written proof existed occurred on September 21, 1983.However, the plaintiff's attorney noted that the parents of the infant plaintiff had testified at a General Municipal Law § 50-h hearing, that they had brought the plaintiff to Elmhurst Hospital for a further visit in 1984 and that they had scheduled an appointment for 1985.Examination of the record of the parents' hearing testimony reveals that this visit occurred in October of 1984 and that the subsequent visit was scheduled for April of 1985.Thus, both appointments were after the notice of claim had been filed.Nelson Ganess, the plaintiff's father, also submitted an affidavit in which he stated that an additional visit occurred in 1986.

In an order dated May 17, 1991, the Supreme Court granted the HHC's motion.For the following reasons, we affirm.

The 90-day notice of claim provision applicable to medical malpractice actions brought against the HHC is to be found in the "New York City Health and Hospitals Corporation Act"(see, McKinney's Unconsolidated Laws of NY§ 7381 et seq.).According to the provisions of this act, no action for damages due to personal injuries may be brought against the HHC "unless a notice of intention to commence such action * * * shall have been filed * * * within ninety days after such cause of action shall have accrued" (Unconsolidated Laws § 7401[2].The force of this 90-day deadline is moderated somewhat in that it is subject to "[a]ll the provisions of section fifty-e of the general municipal law"(Unconsolidated Laws § 7401[2], supra ).Because the infant plaintiff's cause of action accrued in 1973, the present case is governed by those provisions which were contained in the version of General Municipal Law § 50-e which was in effect prior to a 1976amendment(L.1959, ch. 814;see, Matter of Beary v. City of Rye, 44 N.Y.2d 398, 413, 406 N.Y.S.2d 9, 377 N.E.2d 453;Aponte v. Bellevue Hosp. Ctr., 183 A.D.2d 594, 584 N.Y.S.2d 28;Grellet v. City of New York, 118 A.D.2d 141, 143-145, 504 N.Y.S.2d 671).

Under the pre-1976 terms of General Municipal Law § 50-e(5), a notice of claim filed more than 90 days following the accrual of a plaintiff's cause of action based on personal injuries was considered a nullity.The courts had no power to grant an extension of the 90-day period applicable in such cases unless the application for such relief was shown to have been made within one year (see, Matter of Martin v. School Bd. of Union Free District No. 28, Long Beach, 301 N.Y. 233, 93 N.E.2d 655;see also, Matter of Cohen v. City of New York, 19 A.D.2d 722, 242 N.Y.S.2d 398, aff'd14 N.Y.2d 659, 249 N.Y.S.2d 868, 198 N.E.2d 901;Schiermeyer v. Averill Park Cent. School Dist. No. 1, 42 A.D.2d 654, 345 N.Y.S.2d 210;Matter of Freifeld v. New York City Housing Auth., 17 A.D.2d 854, 233 N.Y.S.2d 662;Matter of Jackson v. New York City Housing Auth., 15 A.D.2d 957, 226 N.Y.S.2d 811;Chikara v. City of New York, 10 A.D.2d 862, 199 N.Y.S.2d 829).In accordance with this rule, the Supreme Court held, and it is not challenged on appeal, that the plaintiff's action had to be dismissed unless the running of the applicable 90-day prescriptive period was shown to have been suspended by operation of the continuous treatment doctrine for the period of time which elapsed between August 6, 1973, when the plaintiff was born, and February 18, 1984, 90 days before the notice of claim was filed (see, Grellet v. City of New York, 118 A.D.2d 141, 504 N.Y.S.2d 671, supra ).We agree with the Supreme Court that the plaintiff failed to meet his burden on this issue (see, e.g., Massie v. Crawford, 78 N.Y.2d 516, 577 N.Y.S.2d 223, 583 N.E.2d 935;Rizk v. Cohen, 73 N.Y.2d 98, 538 N.Y.S.2d 229, 535 N.E.2d 282).

The evidence in the record includes a ten-year-long chronology of the "Sean Ganess Clinic Visits".This chronology, submitted to the court by the plaintiff, itemizes the nature of the 44 visits which took place between November 30, 1973, and September 21, 1983.Several of the 34 pre-1979 notations describe the corresponding visits as having involved the prescription of exercise programs or physiotherapy.The ten notations which refer to the visits which took place since 1979 are as follows:

"5/2/79 Regular physical

11/27/79 Basically no change (good to normal hand function)

11/29/79 Physical

5/7/80 Physical exam

5/6/81 Evaluation of erb's palsy

8/18/81 Physical examination

5/18/82 Checked erb's palsy, checked for signs of scoliosis, told to return in one year

5/19/82 Complete evaluation, monitored for curvature of the spine

8/19/83 Follow up on erb's palsy

9/21/83 Flexion/contracture of left arm checked, hip unchanged".

In our view, this evidence submitted by the plaintiff himself demonstrates that, at least as of 1979, the plaintiff was receiving no more than routine physical examinations.The fact that the routine examinations undergone by the plaintiff might have included the monitoring or evaluation of the medical condition with which he was born does not mean that he was being treated for that condition.

The continuous treatment doctrine has been held to be inapplicable where the patient's continuing visits to the treating physician were not part of a continuing effort to combat the symptoms of the disease for which the plaintiff sought compensation (see, e.g., Cooper v. Kaplan, 78 N.Y.2d 1103, 578 N.Y.S.2d 124, 585 N.E.2d 373;Massie v. Crawford, 78 N.Y.2d 516, 577 N.Y.S.2d 223, 583 N.E.2d 935, supra;Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026;Charalambakis v. City of New York, 46 N.Y.2d 785, 413 N.Y.S.2d 912, 386 N.E.2d 823;Schroeter v. Paley, 203 A.D.2d 551, 611 N.Y.S.2d 204).In other words, routine examinations meant to monitor a patient's physical condition may not serve as a pretext for suspending the running of the applicable period of limitations (e.g., Cassara v. Larchmont-Mamaroneck Eye Care Group, ...