Opinion
November 15, 1988
Appeal from the Supreme Court, Onondaga County, Mordue, J.
Present — Dillon, P.J., Doerr, Green, Pine and Balio, JJ.
Order unanimously affirmed without costs. Memorandum: An action for medical malpractice must be commenced within 2 1/2 years from the act, omission or failure complained of or 2 1/2 years from the "last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure" (CPLR 214-a). The last date that plaintiff saw defendant Dr. Hamel was sometime in March 1979. Thus, the action against him, commenced in November 1985, is time barred and the complaint against him must be dismissed.
Plaintiff's argument that his continuous treatment by the professional corporation of which Dr. Hamel was a former member is sufficient to toll the Statute of Limitations is unavailing. The fact that a "physician is a shareholder, officer or employee of a professional service corporation does not make him vicariously liable for the malpractice of another doctor who is an officer, director and employee of the corporation" (Hill v St. Clare's Hosp., 67 N.Y.2d 72, 79, citing Connell v. Hayden, 83 A.D.2d 30, 49-59; Business Corporation Law § 1505 [a]; see also, Pellegrino v. Fillmore Hosp., 140 A.D.2d 954).
A different result obtains, however, in plaintiff's action against the professional corporation, Hamel Bernstein, P.C. In 1979, after Dr. Hamel retired from the practice of medicine, defendant Dr. Bernstein caused a certificate of change of name of the corporation to be filed with the State (i.e., Arthur R. Bernstein, M.D., P.C.) and treatment of plaintiff continued until January 1984. No certificate of dissolution of the corporation Hamel Bernstein, P.C. was ever filed. The change of name of the corporation did not affect plaintiff's cause of action against the corporation, and by service of a summons and complaint on the corporation in November 1985 plaintiff acquired personal jurisdiction over this defendant.