Marks v. Model
Decision Date | 08 July 2008 |
Docket Number | No. 2007-03455.,No. 2007-09249,2007-03455.,2007-09249 |
Parties | LEA MARKS, Appellant, v. LAWRENCE M. MODEL, Respondent, et al., Defendants. (And a Third-Party Action.) |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendant Lawrence M. Model.
A medical malpractice cause of action accrues on the date of the alleged act, omission, or failure complained of, and is subject to a 2½-year statute of limitations (see CPLR 214-a; Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 5 [2007]; Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774 [2007]). However, the continuous treatment doctrine acts to toll the statute when "there has been a course of treatment established with respect to the condition that gives rise to the lawsuit" (Nykorchuck v Henriques, 78 NY2d at 259; see Williamson v Pricewaterhouse Coopers LLP, 9 NY3d at 5; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774 [2007]).
The defendant Lawrence M. Model established his prima facie entitlement to summary judgment by demonstrating that the plaintiff's medical malpractice claims arising prior to September 11, 2000 were time-barred (see CPLR 214-a). In opposition to the motion, the plaintiff failed to raise a triable issue of fact by showing that the statute of limitations was tolled by the continuous treatment doctrine (see Williamson v Pricewater-houseCoopers LLP, 9 NY3d at 5; Nykorchuck v Henriques, 78 NY2d at 258-259; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774 [2007]). The plaintiff's continuing general relationship with Dr. Model did not qualify as continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d...
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