Webster v. Nupuf

286 A.D.2d 925, 730 N.Y.S.2d 906, 2001 N.Y. App. Div. LEXIS 8977

Opinion

—Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted defendant’s motion seeking summary judgment dismissing the complaint as time-barred. Plaintiffs commenced this action in October 1999 seeking to recover damages for alleged medical malpractice arising from defendant’s failure to diagnose cancer after the abnormal bone scans of plaintiff Harvey Webster in January and June 1992. Defendant met his initial burden of establishing his entitlement to judgment as a matter of law by demonstrating that the action was commenced after the expiration of the applicable Statute of Limitations (see, CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904, 906). In response, plaintiffs failed to demonstrate “the existence of triable issues of fact when they argued that the doctrine of continuous treatment tolled the Statute of Limitations” (Cox v Kingsboro Med. Group, supra, at 906). It is undisputed that further treatment was not anticipated after July 1992 (see, Richardson v Orentreich, 64 NY2d 896, 898-899) and that more than three years thereafter elapsed before any further visits (see, Curcio v Ippolito, 63 NY2d 967, 969). (Appeal from Order of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Hayes, Wisner, Kehoe and Burns, JJ.