Holic v. Chabot

209 A.D.2d 924, 619 N.Y.S.2d 223, 1994 N.Y. App. Div. LEXIS 11906

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

—Order insofar as appealed from unanimously reversed on the law without costs, motion denied, second affirmative defense reinstated, cross motion granted and complaint dismissed. Memorandum: In this medical malpractice action, plaintiffs moved to strike defendant’s affirmative defense that the action is barred by the Statute of Limitations (CPLR 214-a), and for imposition of sanctions based on defendant’s assertion of that allegedly frivolous defense. Defendant cross-moved to dismiss the complaint based on that affirmative defense. Supreme Court granted the motion in part, dismissing that affirmative defense but denying the request for sanctions, and denied the cross motion. The court should have granted the cross motion to dismiss the complaint on the ground that the action is barred by the Statute of Limitations. Contrary to plaintiffs’ contention, the continuous treatment doctrine does not apply because defendant never established a course of treatment for the breast cancer of plaintiff Joyce Holic. Defendant referred her to a surgeon for the breast cancer itself and treated her for problems associated only with the mastectomy incision (see, Gordon v Magun, 83 NY2d 881; Nykorchuk v Henriques, 78 NY2d 255, 258-259; Hall v Luthra, 206 AD2d 890). (Appeal from Order of- Supreme Court, Oneida County, Shaheen, J.—Dismiss Complaint.) Present—Pine, J. P., Balio, Fallon, Callahan and Davis, JJ.