Summary
In Hall, the plaintiff ignored her physician's direction to return for further treatment and instead sought treatment from other physicians in the interim (see Hall v Luthra, 206 AD2d at 891).
Summary of this case from Gomez v. KatzOpinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Wolf, Jr., J.
Present — Denman, P.J., Pine, Lawton, Callahan and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law without costs and motion granted. Memorandum: Supreme Court erred in denying defendant's motion for partial summary judgment dismissing the causes of action on behalf of plaintiff's decedent concerning medical care rendered by defendant before April 4, 1987. Plaintiff failed to establish that the Statute of Limitations (CPLR 214-a) was tolled by the continuous treatment doctrine (see, Gordon v. Magun, 83 N.Y.2d 881; Nykorchuck v Henriques, 78 N.Y.2d 255; Washington v. Elahi, 192 A.D.2d 704; cf., Dragonette v. Nielson, 186 A.D.2d 334). Defendant treated decedent for angina and high blood pressure and never instituted a course of treatment for the breast cancer of decedent (see, Gordon v. Magun, supra; Nykorchuck v. Henriques, supra), nor did plaintiff even allege that decedent's complaints of blurred vision, headaches and left-sided chest pain in 1985 were related to the cancer discovered in decedent's right breast by another physician in November 1987.
Even assuming that plaintiff established that defendant instituted a course of treatment, plaintiff failed to establish the requisite continuity of treatment. Plaintiff's decedent saw defendant in June 1985, and not again until September 1987, despite his direction to return in two months (see, Coyne v Besser, 165 A.D.2d 857, lv denied 77 N.Y.2d 808; Fox v. Glens Falls Hosp., 129 A.D.2d 955, 957; see also, Rizk v. Cohen, 73 N.Y.2d 98, 105), and she was treated by other physicians in the interim.