Mello v. Long Island Vitreo-Retinal Consultant, P.C.

• Decision Date: 08 May 2019
• Docket Number: Index No. 8280/13,2017–05862
• Citation: 99 N.Y.S.3d 414,172 A.D.3d 849
• Court: New York Supreme Court — Appellate Division
• Parties: Bruce MELLO, Respondent, v. LONG ISLAND VITREO–RETINAL CONSULTANT, P.C., et al., Defendants, Ophthalmic Consultants of Long Island, et al., Appellants.

172 A.D.3d 849
99 N.Y.S.3d 414

Bruce MELLO, Respondent,
v.
LONG ISLAND VITREO–RETINAL CONSULTANT, P.C., et al., Defendants,

Ophthalmic Consultants of Long Island, et al., Appellants.

2017–05862
Index No. 8280/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 18, 2018
May 8, 2019

99 N.Y.S.3d 415

Kelly Rode & Kelly, LLP, Mineola, N.Y. (Eric P. Tosca and Shawn Kelly of counsel), for appellants.

Law Offices of Daniel A. Thomas, P.C., New York, NY, for respondent.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

172 A.D.3d 849

In an action to recover damages for medical malpractice, the defendants Ophthalmic Consultants of Long Island and Robert Broderick appeal from an order of the Supreme Court, Nassau County (Angela G. Iannacci, J.), entered April 19, 2017. The order denied the motion of those defendants pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion of the defendants Ophthalmic Consultants of Long Island and Robert Broderick which were pursuant to CPLR 3211(a)(5) to dismiss so much of the amended complaint as alleged acts of medical malpractice occurring on February 25, 2011, and July 15, 2011, insofar as asserted against them as time-barred, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, with costs payable to the defendants Ophthalmic Consultants of Long Island and Robert Broderick.

On November 12, 2015, the plaintiff commenced this medical malpractice action against the defendant Ophthalmic Consultants of Long Island (hereinafter OCLI), and he later amended his complaint to add OCLI's principal, the defendant Robert

172 A.D.3d 850

Broderick, as a defendant. The action was consolidated with a prior action that the plaintiff had commenced against the defendants Long Island Vitreo–Retinal Consultant, P.C., Juan M. Romero, and Eric P. Shakin.

The plaintiff alleged that Broderick was negligent in rendering ophthalmological care on three dates: February 25, 2011, July 15, 2011, and December 6, 2013. The plaintiff's bill of particulars alleged that Broderick failed to diagnose and treat the plaintiff for a glaucoma condition on those dates. Broderick and OCLI (hereinafter together the moving defendants) moved pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred. The Supreme Court denied the motion, and the...