Raucci v. Shinbrot

• Citation: 5 N.Y.S.3d 314,127 A.D.3d 839,2015 N.Y. Slip Op. 02952
• Decision Date: 08 April 2015
• Docket Number: 2013-00151, 2013-08417, Index No. 19829/09.
• Parties: Florence RAUCCI, et al., respondents, v. Richard G. SHINBROT, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 839
5 N.Y.S.3d 314
2015 N.Y. Slip Op. 02952

Florence RAUCCI, et al., respondents
v.
Richard G. SHINBROT, etc., et al., appellants, et al., defendants.

2013-00151, 2013-08417, Index No. 19829/09.

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

April 8, 2015.

5 N.Y.S.3d 315

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen and Michelle C. Acosta of counsel), for appellants Richard G. Shinbrot and Richard G. Shinbrot, D.O., P.C.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Amy E. Bedell of counsel), for appellants Matthew J. McKinley and ProHealthcare Association, LLP.

Edelman, Krasin & Jaye, PLLC, Carle Place, N.Y. (Sal A. Spano of counsel and Avelino Nitkewicz, LLP [Andrew P. Nitkewicz ], former of counsel on the brief), for respondents.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and BETSY BARROS, JJ.

Opinion

127 A.D.3d 839

In an action to recover damages for medical malpractice and lack of informed consent, etc., the defendants Richard G. Shinbrot and Richard G. Shinbrot, D.O., P.C., appeal, and the defendants Matthew J. McKinley and ProHealthcare Association, LLP, separately appeal, as limited by their respective

127 A.D.3d 840

briefs, from so much of (1) an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 12, 2012, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, and (2) an order of the same court, entered July 5, 2013, as, upon renewal and reargument, adhered to its original determination.

ORDERED that the appeals from the order dated October 12, 2012, are dismissed, as that order was superseded by the order entered July 5, 2013, made upon renewal and reargument; and it is further,

ORDERED that the order entered July 5, 2013, is reversed insofar as appealed from, on the law, with one bill of costs, upon renewal and reargument, the determination in the order dated October 12, 2012, denying the separate motions of the defendants Richard G. Shinbrot and Richard G. Shinbrot, D.O., P.C., and the defendants Matthew J. McKinley and ProHealthcare Association, LLP, for summary judgment dismissing the complaint insofar as asserted against each of them is vacated, and those separate motions are thereupon granted.

Medical malpractice actions are governed by a 2 ½–year statute of limitations (see CPLR 214–a ). “However, the continuous treatment doctrine acts to toll

5 N.Y.S.3d 316

the statute when ‘there has been a course of treatment established with respect to the condition that gives rise to the lawsuit’ ” (Marks v. Model, 53 A.D.3d 533, 533, 862 N.Y.S.2d 533, quoting Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 ; see Williamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 8, 840 N.Y.S.2d 730, 872 N.E.2d 842 ).

In support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendants Richard G. Shinbrot and Richard G. Shinbrot, D.O., P.C. (hereinafter together the Shinbrot defendants), established, prima facie, that so much of the plaintiffs' medical malpractice cause of action insofar as asserted against them as was premised on allegations of malpractice occurring prior to March 28, 2007, was time-barred. The Shinbrot defendants performed a laparascopic cholecystectomy on the plaintiff Florence Raucci (hereinafter the injured plaintiff) on December 2, 2005. The Shinbrot defendants acknowledged that they continued to provide related postoperative care to the injured plaintiff, but demonstrated that they did so only through March 28, 2006. The plaintiffs commenced this action on September 28, 2009. Thus, the Shinbrot defendants established, prima facie, that so much of the plaintiffs' medical malpractice cause of action insofar as asserted against them as was premised on acts or omissions occurring prior to March 28, 2007, or 2 ½ years before the commencement of this action, was time-barred.

127 A.D.3d 841

Upon renewal and reargument, in opposition to the Shinbrot defendants' motion, the plaintiffs submitted evidence that Shinbrot referred the injured plaintiff to the defendant physician Matthew J. McKinley in late March 2006, and they submitted copies of certain letters from McKinley to Shinbrot dated April 5, 2006, and May 22, 2006, respectively, in which McKinley explained his evaluation of the injured plaintiff to Shinbrot. These letters were insufficient to raise a triable issue of fact as to whether the injured plaintiff continued to seek an actual course of treatment from the Shinbrot defendants...