Domena v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Domena v. New York City Health & Hospitals Corp.

259 A.D.2d 462, 686 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 2012

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 1, 1999

StatusPublished

Cited by1 cases

This text of 259 A.D.2d 462 (Domena v. New York City Health & Hospitals Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Domena v. New York City Health & Hospitals Corp., 259 A.D.2d 462, 686 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 2012 (N.Y. Ct. App. 1999).

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Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated July 7, 1997, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As the plaintiff failed to serve a notice of claim within 90 days of the accrual of her cause of action, and never sought permission to serve a late notice of claim (see, General Municipal Law § 50-e; McKinney’s Uncons Laws of NY § 7401 [2]), her complaint could only be saved by application of the continuous treatment doctrine. However, “[o]ne of the elements of continuous treatment is that ‘further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past’ ” (Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338, quoting Richardson v Orentreich, 64 NY2d 896, 898-899). Here, the plaintiff was unable to present evidence tending to show that further treatment by the defendants was anticipated. The Supreme Court therefore erred when it denied the defendants’ motion to dismiss her complaint.

The plaintiff’s remaining contentions are without merit. Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.

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In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated July 7, 1997, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

As the plaintiff failed to serve a notice of claim within 90 days of the accrual of her cause of action, and never sought permission to serve a late notice of claim (see, General Municipal Law § 50-e; McKinney’s Uncons Laws of NY § 7401 [2]), her complaint could only be saved by application of the continuous treatment doctrine. However, “[o]ne of the elements of continuous treatment is that ‘further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during the last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past’ ” (Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338, quoting Richardson v Orentreich, 64 NY2d 896, 898-899). Here, the plaintiff was unable to present evidence tending to show that further treatment by the defendants was anticipated. The Supreme Court therefore erred when it denied the defendants’ motion to dismiss her complaint.

The plaintiff’s remaining contentions are without merit. Ritter, J. P., Sullivan, Altman and McGinity, JJ., concur.

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Bluebook (online)

259 A.D.2d 462, 686 N.Y.S.2d 66, 1999 N.Y. App. Div. LEXIS 2012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domena-v-new-york-city-health-hospitals-corp-nyappdiv-1999.

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