Opinion
5875
January 15, 2002.
Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered April 11, 2001, which, inter alia, denied the cross motion of defendant Bhadra Bharat Shah, M.D. to dismiss Action No. 1 for lack of jurisdiction and Action No. 2 as time-barred, unanimously affirmed, without costs.
JAMES L. LUTFY, for plaintiff-respondent.
TIMOTHY J. O'SHAUGHNESSY, for defendant-appellant.
JAMES L. LUTFY, for plaintiff-respondent.
TIMOTHY J. O'SHAUGHNESSY, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Saxe, Sullivan, Ellerin, JJ.
Since defendant was timely served with both the original and the supplemental papers, the action was not dismissed under CPLR 306-b as had occurred in Louden v. Rockefeller Ctr. N., Inc. ( 249 A.D.2d 25), thereby rendering that matter distinguishable. Indeed, here jurisdiction was obtained over defendant in the first action by the service upon her of both the original and the supplemental summons with notice within the requisite 120 days, without prejudice to defendant as a result of the procedure followed by plaintiff (see, Spitzer v. Dewar Found., Inc., 280 A.D.2d 385).
The motion court also appropriately declined to dismiss the second action as time-barred. While a limitations period of 2½ years is applicable to a claim for medical malpractice (see, CPLR 214-a), which cause of action generally accrues on the date when the alleged malpractice occurred (see, Young v. New York City Health Hosps. Corp., 91 N.Y.2d 291, 295; Nykorchuck v. Henriques, 78 N.Y.2d 255, 258), and the surgical malpractice alleged by plaintiff against defendant Shah is said to have occurred on August 9, 1996, plaintiff also alleges that she advised Shah of her persistent discomfort almost immediately after the latter operated upon her and that she sought corrective treatment for her post-operative condition as late as her visit to defendant's office on December 12, 1996. Under these circumstances, plaintiff is entitled to discovery, including the deposition of Dr. Shah, to substantiate her claim that the complained of course of treatment continued into the applicable statutory period.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.