Opinion
2021-05920 Index 805123/18
10-28-2021
Jeremy Caraballo, Plaintiff-Appellant, v. New York Presbyterian Hospital/Weill Cornell Medical Center, a Part of the New York Presbyterian Healthcare System Inc., Defendant-Respondent, Mount Sinai Queens Hospital, a Part of the Mount Sinai Health System, Inc., et al., Defendants. Appeal No. 14521-14521A Case Nos. 2021-01289, 2021-01290
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for appellant. Keller, O'Reilly & Watson, P.C., Woodbury (Patrick J. Engle of counsel), for respondent.
Hasapidis Law Offices, Scarsdale (Annette G. Hasapidis of counsel), for appellant.
Keller, O'Reilly & Watson, P.C., Woodbury (Patrick J. Engle of counsel), for respondent.
Before: Renwick, J.P., González, Kennedy, Scarpulla, Rodriguez, JJ.
Order, Supreme Court, New York County (John J. Kelley, J.), entered on or about October 14, 2020, which granted the motion of defendant The New York and Presbyterian Hospital (NYPH) to dismiss the complaint as against it, and supplemental order, same court and Justice, entered October 28, 2020, which severed the action as against defendant Mount Sinai Queens Hospital and directed entry of judgment in favor of NYPH dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff's last visit to the NYPH-affiliated endocrinology clinic was on July 28, 2015. The course of treatment continued through plaintiff's scheduled appointment on September 1, 2015, but terminated after he missed that appointment and did not reschedule (see Richardson v Orentreich, 64 N.Y.2d 896, 898-99 [1985]). As a result, this action was not timely filed. Even if the September 9, 2015 communication was sufficient to demonstrate a continuing course of treatment through that date, the action would still not be timely.
That plaintiff continued to take the medications prescribed at his last appointment through July 23, 2016 is not sufficient to extend his course of treatment through that date (see Cooper v Kaplan, 163 A.D.2d 215, 216 [1st Dept 1990], affd 78 N.Y.2d 1103 [1991]; Bernardo v Ayerest Labs., Div of Am. Home Prods., 99 A.D.2d 430, 431 [1st Dept 1984]). Plaintiff's history of missing appointments does not alter that general rule.
Plaintiff's conclusory assertion in his affidavit that he still considered himself to be a patient of the NYPH endocrinology clinic through July 2016 is not dispositive, as the understanding that treatment was ongoing must be shared by both physician and patient (see Plummer v New York City Health & Hosps. Corp., 98 N.Y.2d 263, 267-268 [2002]; Allende v New York City Health & Hosps. Corp., 90 N.Y.2d 333, 338 [1997]). Plaintiff's statement is at any rate inconsistent with his conduct at his October 21, 2015 appointment at Mount Sinai, at which he stated that he "[w]as seeing" a different endocrinologist but wanted to be treated at Mount Sinai from then on, and at which a
Mount Sinai doctor undertook to treat his diabetes by adjusting his medication and referring him to a new endocrinologist, with whom he began treatment in January 2016 (see id. at 338-339).