Shumway v. DeLaus

Appellate Division of the Supreme Court of New York

Shumway v. DeLaus

152 A.D.2d 951, 543 N.Y.S.2d 777, 1989 N.Y. App. Div. LEXIS 9829

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

DecidedJuly 12, 1989

StatusPublished

Cited by7 cases

This text of 152 A.D.2d 951 (Shumway v. DeLaus) 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

Shumway v. DeLaus, 152 A.D.2d 951, 543 N.Y.S.2d 777, 1989 N.Y. App. Div. LEXIS 9829 (N.Y. Ct. App. 1989).

Pincite

Opinion

Order unanimously affirmed with costs. Memorandum: Although the Second Department has held that a gap in treatment that exceeds the 21A-year period of limitations (see, CPLR 214-a) bars the application of the continuous course of treatment doctrine as a matter of law (see, Curdo v Ippolito, 97 AD2d 497, affd 63 NY2d 967; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Bennin v Ramapo Gen. Hosp., 72 AD2d 736), the Court of Appeals found it unnecessary to adopt that holding (see, Curdo v Ippolito, 63 NY2d 967, 969, supra). We decline to adopt such rule in this department. Instead, we adhere to the principle that "where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitations is certainly satisfied” (Richardson v Orentreich, 64 NY2d 896, 899). Upon application of that principle, plaintiff’s averments are sufficient to raise questions of fact. Thus, Supreme Court properly denied defendant’s motion for summary judgment. (Appeal from order of Supreme Court, Monroe County, Curran, J. — partial summary judgment.) Present —Dillon, P. J., Callahan, Green, Pine and Davis, JJ.

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Order unanimously affirmed with costs. Memorandum: Although the Second Department has held that a gap in treatment that exceeds the 21A-year period of limitations (see, CPLR 214-a) bars the application of the continuous course of treatment doctrine as a matter of law (see, Curdo v Ippolito, 97 AD2d 497, affd 63 NY2d 967; Barrella v Richmond Mem. Hosp., 88 AD2d 379; Bennin v Ramapo Gen. Hosp., 72 AD2d 736), the Court of Appeals found it unnecessary to adopt that holding (see, Curdo v Ippolito, 63 NY2d 967, 969, supra). We decline to adopt such rule in this department. Instead, we adhere to the principle that "where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitations is certainly satisfied” (Richardson v Orentreich, 64 NY2d 896, 899). Upon application of that principle, plaintiff’s averments are sufficient to raise questions of fact. Thus, Supreme Court properly denied defendant’s motion for summary judgment. (Appeal from order of Supreme Court, Monroe County, Curran, J. — partial summary judgment.) Present —Dillon, P. J., Callahan, Green, Pine and Davis, JJ.

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Bluebook (online)

152 A.D.2d 951, 543 N.Y.S.2d 777, 1989 N.Y. App. Div. LEXIS 9829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shumway-v-delaus-nyappdiv-1989.

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