Opinion
2012-06-14
Diana RODRIGUEZ, Plaintiff–Appellant, v. The MOUNT SINAI HOSPITAL, Defendant–Respondent.
Suckle Schlesinger, PLLC, New York (Howard A. Suckle of counsel), for appellant. Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for respondent.
Suckle Schlesinger, PLLC, New York (Howard A. Suckle of counsel), for appellant. Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, SWEENY, MANZANET–DANIELS, ROMÁN, JJ.
Order, Supreme Court, New York County (Joan B. Lobis, J.), entered July 11, 2011, which, to the extent appealed as limited by the briefs, upon converting defendant hospital's motion to dismiss the medical malpractice claims as barred by the statute of limitations into a motion for summary judgment, granted the motion to the extent of dismissing all claims arising from the bilateral prophylactic mastectomy performed on November 20, 2001, unanimously affirmed, without costs.
Defendant met its burden on the motion by submitting evidence showing that plaintiff's claims relating to her mastectomy are time-barred ( seeCPLR 214–a; Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 906, 646 N.Y.S.2d 659, 669 N.E.2d 817 [1996] ).
In opposition, plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous treatment doctrine or the provisions of CPLR 208. With respect to the continuous treatment doctrine, the record shows that plaintiff's mastectomy on November 20, 2001 and her breast reconstruction surgery on September 26, 2002 were separate and discrete procedures, as further treatment after plaintiff's mastectomy was not “explicitly anticipated” by both plaintiff and her doctors ( Cox, 88 N.Y.2d at 906–907, 646 N.Y.S.2d 659, 669 N.E.2d 817;cf. Blaier v. Cramer, 303 A.D.2d 301, 302, 756 N.Y.S.2d 561 [2003] ). With respect to the tolling provisions of CPLR 208, the record shows that, despite plaintiff's depression and anxiety, she was able to protect her legal rights and function in society ( see McCarthy v. Volkswagen of Am., 55 N.Y.2d 543, 548–549, 450 N.Y.S.2d 457, 435 N.E.2d 1072 [1980];see also Burgos v. City of New York, 294 A.D.2d 177, 178, 742 N.Y.S.2d 39 [2002] ).