Opinion
Index No. 21178/18
11-20-2018
HERMAN GUY, Plaintiff, v. MARK STEIN, MD, and INTEGRATED MEDICAL PROFESSIONALS, PLLC, Defendants.
Unpublished Opinion
Hon. JOSEPH CAPELLA, Justice.
DECISION/ORDER
Joseph E. Capella, J.S.C.
The following papers numbered 1 to ___Read on this motion, (Seq. No. 1) for DISMISSAL , noticed on August 07 2018
Notice of Motion - Older to Show Cause - Exhibits and Affidavits Annexed
No(s).
Answering Affidavit and Exhibits
No(s).
Replying Affidavit and Exhibits
No(s).
Upon the foregoing papers, it is ordered that this motion is
The following papers numbered 1 to___read on this motion and cross-motion, submitted on September 11, 2018, as no.____on the Motion Calendar of _____.
PAPERS
NUMBERED
NOTICE OF MOTION AND AFFIDAVITS AND EXHIBITS
1
ANSWERING AFFIDAVIT AND EXHIBITS
3
CROSS-MOTION AND AFFIDAVITS AND EXHIBITS REPLY AFFIDAVIT AND EXHIBITS
4-5
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER ON THIS MOTION AND CROSS-MOTION IS DECIDED AS FOLLOWS:
In this action, commenced January 30, 2018, the plaintiff alleges three causes of action. The first is medical malpractice, in which plaintiff alleges that defendants were negligent in their treatment of plaintiffs circumcision procedure that took place on July 11, 2014. The second is a failure to promulgate and comply with rules, regulations and protocols that allegedly resulted in various physical injuries. And lastly, plaintiff alleges that defendants failed to obtain informed consent of the circumcision procedure. The defendants seek dismissal (CPLR 3211(a)(5)) of plaintiffs first and third cause of action on the premise that said claims are time-barred by the two year and six month statute of limitations imposed pursuant to section 214-a of the CPLR. (Scott v Uljanov, 74 N.Y.2d 673 [1989]; DeLeon v Hospital of Albert Einstein, 164 A.D.2d 743 [1st Dept 1991].) According to Dr. Stein's affidavit and medical records, the last date of treatment provided to plaintiff as it relates to his circumcision procedure was March 30, 2015. And as such, the statute of limitations ended on September 30, 2017. The complaint, however, was not filed until January 30, 2018, some four months past the statute of limitation's deadline. The plaintiff's second cause of action, which alleges a failure to promulgate and comply with rules, regulations and protocols, is derivative in nature in that it is predicated upon the underlying medical malpractice claim. (Camadeo v Leeds, 290 A.D.2d 355 [1st Dept 2002].) Hence, if plaintiffs malpractice claim is dismissed based on the statute of limitations, then this derivative claim must likewise be dismissed. (Balestrero v Prudential, 283 AD 794 [2nd Dept 1954], affirmed 307 NY 709 [1954].) Given the aforementioned, the burden now shifts to plaintiff to establish that he received continuous treatment after March 30, 2015, in order to avail himself of the tolling provision provided by same (Massie v Crawford, 78 N.Y.2d 516 [1991]; Plummer v NYC Health &Hospital, 98 N.Y.2d 263 [2002]).
The defendant, Mark Stein, MD, moves by notice of motion, and defendant, Integrated Medical Professionals, PLLC, moves by notice of cross-motion.
In opposition, the plaintiff alleges that after the July 2014 circumcision, he mentioned to Dr. Stein that "there was still quite a bit of foreskin." He was allegedly told that Dr. Stein "did leave some excess foreskin because he felt that a tight circumcision could be uncomfortable." According to plaintiff, after March 2015, he "continued to visit Dr. Stein until August 2015 and, at every visit, [he] mentioned the presence of the excess foreskin." However, the plaintiffs affidavit is devoid of any specific dates, and the medical records do not reflect any such conversations taking place after March 2015. Such a vague and conclusory affidavit that conspicuously fails to mention specific dates of continuous treatment or the substance of these alleged conversations with the doctor is insufficient to rebut documentary evidence to the contrary. (Flego v Vilasi, 154 A.D.2d 434 [2nd Dept]; Boyle v Fox, 51 A.D.3d 1243 [3rd Dept 2008].) Moreover, the omission of specific dates is fatal when opposing a defense based on statute of limitations, which itself is predicated on the establishment of dates and the calculation of time. (Sherry v Queens Kidney, 117 A.D.2d 663 [2nd Dept 1986].) Having failed to establish that he received continuous treatment after March 30, 2015, the plaintiff cannot avail himself of the tolling provision provided by same. (Massie, 78 N.Y.2d 516; Plummer, 98 N.Y.2d 263].) Therefore, the defendants' motions are granted, this action is dismissed, and the clerk shall enter judgment accordingly.
Defendants are directed to serve a copy of this decision/order with notice of entry by first class mail upon plaintiff within 30 days of receipt of copy of same. This constitutes the decision and order of this court.