Texeria v. BAB Nuclear Radiology, P.C.

Appellate Division of the Supreme Court of New York

Texeria v. BAB Nuclear Radiology, P.C.

54 A.D.3d 1022, 864 N.Y.S.2d 568

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

DecidedSeptember 30, 2008

StatusPublished

Cited by1 cases

This text of 54 A.D.3d 1022 (Texeria v. BAB Nuclear Radiology, P.C.) 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.

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Texeria v. BAB Nuclear Radiology, P.C., 54 A.D.3d 1022, 864 N.Y.S.2d 568 (N.Y. Ct. App. 2008).

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Opinion

In an action to recover damages for medical malpractice, the defendants BAB Nuclear Radiology, EC., Stuart Katz, and Faul Bonheim appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered October 17, 2006, as denied that branch of their motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003.

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

On their motion for summary judgment, the appellants established their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), by demonstrating that any medical malpractice claims based upon alleged acts they committed prior to January 1, 2003, were time-barred (see CPLR 214-a). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]). Accordingly, the Supreme Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003. Mastro, J.E, Skelos, Covello and Leventhal, JJ., concur.

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In an action to recover damages for medical malpractice, the defendants BAB Nuclear Radiology, EC., Stuart Katz, and Faul Bonheim appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Burke, J.), entered October 17, 2006, as denied that branch of their motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003.

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

On their motion for summary judgment, the appellants established their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), by demonstrating that any medical malpractice claims based upon alleged acts they committed prior to January 1, 2003, were time-barred (see CPLR 214-a). However, in opposition, the plaintiff raised a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine (see Cherise v Braff, 50 AD3d 724, 726 [2008]; Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]). Accordingly, the Supreme Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing, as time-barred, so much of the complaint as was based upon their alleged acts of medical malpractice committed prior to January 1, 2003. Mastro, J.E, Skelos, Covello and Leventhal, JJ., concur.

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Bluebook (online)

54 A.D.3d 1022, 864 N.Y.S.2d 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texeria-v-bab-nuclear-radiology-pc-nyappdiv-2008.

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