Williams-Gardner v. Almeyda

50 A.D.3d 286, 853 N.Y.S.2d 883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered January 30, 2007, which granted defendant-respondent’s motion pursuant to CPLR 3211 (a) (5) to dismiss this medical malpractice action as time-barred, unanimously affirmed, without costs.

Given that after plaintiff’s appointment with defendant on November 1, 1999, further treatment was not “explicitly anticipated” (Richardson v Orentreich, 64 NY2d 896, 898 [1985]; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998])—the parties contemplated such treatment only “as necessary”—the continuous treatment doctrine does not apply (see Richardson at 898-899). Even if the Xeroform gauze, placed in plaintiffs umbilicus during the original surgery and discovered during subsequent exploratory surgery in 2002, were considered a “foreign object” within the meaning of CPLR 214-a, this action, commenced in February 2005, is untimely.

We have considered plaintiffs remaining arguments and find them unavailing. Concur—Gonzalez, J.E, Williams, Catterson and Moskowitz, JJ.