McCabe v. Friedman

Appellate Division of the Supreme Court of New York

McCabe v. Friedman

277 A.D.2d 432, 717 N.Y.S.2d 228, 2000 N.Y. App. Div. LEXIS 12308

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

DecidedNovember 27, 2000

StatusPublished

This text of 277 A.D.2d 432 (McCabe v. Friedman) 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

McCabe v. Friedman, 277 A.D.2d 432, 717 N.Y.S.2d 228, 2000 N.Y. App. Div. LEXIS 12308 (N.Y. Ct. App. 2000).

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Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated September 13, [433]*4331999, as granted the motion of defendants Frank L. Ross, Irving F. Chanin, and C & C Surgical Group, P. C., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The action is time barred as against the respondents since it was commenced more than two and one-half years after their only involvement in the plaintiffs treatment (see, CPLR 214-a; Evra v Hillcrest Gen. Hosp., 111 AD2d 740). The plaintiff is not entitled to have his claim relate back to his timely-commenced action against the defendants Karl Friedman and Central General Hospital, as he failed to show that those defendants are united in interest with the respondents (see, CPLR 203 [b]; Buran v Coupal, 87 NY2d 173; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703). The plaintiff did not demonstrate that the continuous treatment doctrine is applicable to toll the Statute of Limitations, as there was no showing of a relevant continuing relationship between the respondents and the other defendant doctors (see, Meath v Mishrick, 68 NY2d 992, 994; Evra v Hillcrest Gen. Hosp., supra; Swartz v Karlan, 107 AD2d 801, 803). There was no showing that both the plaintiff and the respondents contemplated further treatment (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295; Richardson v Orentreich, 64 NY2d 896, 899).

The plaintiffs contention that the motion was premature is also without merit. The substantial documentary exchange which had already occurred was sufficient to give the plaintiff the information he required to oppose the motion. Speculation that further discovery might reveal information helpful to his case did not create a basis for postponing consideration of the motion (see, Culhane v Schorr, 259 AD2d 511, 513). O’Brien, J. P., Thompson, S. Miller and Feuerstein, JJ., concur.

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—In an action to recover damages for medical malpractice, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (McCaffrey, J.), dated September 13, [433]*4331999, as granted the motion of defendants Frank L. Ross, Irving F. Chanin, and C & C Surgical Group, P. C., for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The action is time barred as against the respondents since it was commenced more than two and one-half years after their only involvement in the plaintiffs treatment (see, CPLR 214-a; Evra v Hillcrest Gen. Hosp., 111 AD2d 740). The plaintiff is not entitled to have his claim relate back to his timely-commenced action against the defendants Karl Friedman and Central General Hospital, as he failed to show that those defendants are united in interest with the respondents (see, CPLR 203 [b]; Buran v Coupal, 87 NY2d 173; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703). The plaintiff did not demonstrate that the continuous treatment doctrine is applicable to toll the Statute of Limitations, as there was no showing of a relevant continuing relationship between the respondents and the other defendant doctors (see, Meath v Mishrick, 68 NY2d 992, 994; Evra v Hillcrest Gen. Hosp., supra; Swartz v Karlan, 107 AD2d 801, 803). There was no showing that both the plaintiff and the respondents contemplated further treatment (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295; Richardson v Orentreich, 64 NY2d 896, 899).

The plaintiffs contention that the motion was premature is also without merit. The substantial documentary exchange which had already occurred was sufficient to give the plaintiff the information he required to oppose the motion. Speculation that further discovery might reveal information helpful to his case did not create a basis for postponing consideration of the motion (see, Culhane v Schorr, 259 AD2d 511, 513). O’Brien, J. P., Thompson, S. Miller and Feuerstein, JJ., concur.

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277 A.D.2d 432, 717 N.Y.S.2d 228, 2000 N.Y. App. Div. LEXIS 12308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccabe-v-friedman-nyappdiv-2000.

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