Pichichero v. Falcon

• Decision Date: 14 September 2016
• Parties: Glen PICHICHERO, appellant, v. Ronald FALCON, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

142 A.D.3d 981

37 N.Y.S.3d 310

2016 N.Y. Slip Op. 05984

Glen PICHICHERO, appellant,

v.Ronald FALCON, etc., et al., respondents.

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

Sept. 14, 2016.

Pegalis & Erickson, LLC, Lake Success, N.Y. (Robert V. Fallarino and Linda M. Oliva of counsel), for appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for respondents Ronald Falcon and Island Dermatology, P.C.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for respondent Randi G. Spinowitz, as executor of the estate of Alan L. Spinowitz.

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered July 17, 2012, as granted the motion of the defendants Ronald Falcon and Island Dermatology, P.C., and that branch of the motion of Alan L. Spinowitz, which were for summary judgment dismissing, as time-barred, so much of the complaint as sought to recover damages for medical malpractice allegedly committed prior to July 8, 2007, insofar as asserted against them, respectively, and denied his cross motion to strike the defendants' affirmative defenses of the statute of limitations.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting the motion of the defendants Ronald Falcon and Island Dermatology, P.C., for summary judgment dismissing, as time-barred, so much of the complaint as sought to recover damages for medical malpractice allegedly committed prior to July 8, 2007, insofar as asserted against them, and substituting therefor a provision denying that motion, (2) by deleting the provision thereof granting that branch of the motion of Alan L. Spinowitz which was for summary judgment dismissing, as time-barred, so much of the complaint as sought to recover damages for medical malpractice allegedly committed prior to July 8, 2007, insofar as asserted against him, and substituting therefor a provision denying that branch of the motion, and (3) by deleting the provision thereof denying that branch of the plaintiff's cross motion which was to strike the affirmative defense of the defendants Ronald Falcon and Island Dermatology, P.C., based on the statute of limitations, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the defendants appearing separately and filing separate briefs.

The plaintiff began seeing the defendant Ronald Falcon, a dermatologist, as a patient in 1990. In 1998, Falcon diagnosed the plaintiff with two basal cell carcinomas

, one on his left upper lip and another on the left side of his nose. From 1998 through 2009, Falcon treated the plaintiff for numerous basal cell and squamous cell carcinomas

and pre-cancerous actinic keratoses on the plaintiff's head, neck, and upper torso at least once a year, except for the year 2004. Each time he diagnosed a skin cancer on the plaintiff's head or neck, or one that was very large, Falcon referred the plaintiff to Alan L. Spinowitz, a dermatologist specializing in a procedure called Mohs micrographic surgery (hereinafter Mohs surgery ) to remove skin cancers. If Falcon did not refer the plaintiff to Spinowitz, he eliminated the lesions himself. Between 1998 and 2009, upon Falcon's referral, Spinowitz surgically removed 16 different skin cancers

from the plaintiff's head and upper torso, including three on his scalp.

In August 2009, a CT scan

performed at South Nassau Communities Hospital in connection with a bicycle accident revealed what appeared to be a potentially cancerous lesion on the plaintiff's skull. On December 18, 2009, a nonparty surgeon at Memorial Sloan Kettering Cancer Center removed the lesion, a basal cell carcinoma which had originated in the plaintiff's scalp, penetrated through his skull, and metastasized to his brain.

On January 8, 2010, the plaintiff commenced this action against Falcon and his professional corporation, Island Dermatology, P.C. (hereinafter together the Falcon defendants), and Spinowitz, seeking to recover damages for, inter alia, medical malpractice. The complaint, as amplified by the bills of particulars, alleged that both doctors had committed malpractice from February 2003 through November 2009 by, among other things, failing to properly diagnose and treat the lesion that metastasized to the plaintiff's brain, during a continuous course of treatment each had undertaken with respect to his skin cancers

. In their respective answers, the Falcon defendants and Spinowitz each pleaded the affirmative defense of the statute of limitations. The Falcon defendants moved for summary judgment dismissing, as time-barred, so much of the complaint as sought to recover damages for medical malpractice allegedly committed prior to July 8, 2007, insofar as asserted against them. Spinowitz...