Opinion
April 22, 1963
In an action to recover damages alleged to have been sustained as the result of malpractice, this court affirmed a judgment of the Supreme Court, Richmond County, entered November 22, 1961, which dismissed the complaint upon the opening of plaintiff's counsel and following an offer of proof by him, on the ground that the cause of action was barred by the two-year limitation period (see 16 A.D.2d 682). Reargument was granted ( 18 A.D.2d 833) on the basis of the subsequent decision by the Court of Appeals in Borgia v. City of New York ( 12 N.Y.2d 151). On reargument, order of this court, dated April 23, 1962, affirming the judgment, vacated; and judgment reversed on the law and a new trial granted, with costs to plaintiff to abide the event. In the offer of proof, plaintiff's counsel conceded that the last act of malpractice occurred on July 16, 1954 and that, while the defendant rendered treatment to plaintiff with respect to the particular condition complained of on 39 occasions until April of 1957, there was no claim that this treatment was improper in any way. The action was brought in July, 1957. There is no dispute that defendant afforded plaintiff "treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship" ( Borgia v. City of New York, supra, p. 157). Hence, the action was not barred by the Statute of Limitations and it was error to dismiss the complaint. Ughetta, Acting P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.