Opinion
06-15-2017
JIANFENG JIANG, Plaintiff–Appellant, Quinyang Chen, Plaintiff, v. XUE CHAO WEI, Defendant, New York City Health and Hospitals Corporation, Defendant–Respondent.
Morelli Law Firm, PLLC, New York (Sara A. Strickland of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondent.
Morelli Law Firm, PLLC, New York (Sara A. Strickland of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Benjamin Welikson of counsel), for respondent.
Order, Supreme Court, New York County (George J. Silver, J.), entered on or about January 29, 2016, which granted defendant New York City Health and Hospitals Corporation's (HHC) motion to dismiss all claims against it based on conduct prior to May 8, 2012, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff alleges that defendants were negligent in failing to timely diagnose a cancerous wound on his left leg. The motion court properly granted HHC's motion to dismiss the claims based on conduct occurring prior to May 8, 2012, since plaintiff failed to file a timely notice of claim, in violation of General Municipal Law § 50–e(1)(a).
Plaintiff was discharged from an HHC hospital in November 2010 and did not return to an HHC hospital for treatment to his leg until May 8, 2012. During that stay, he received the cancer diagnosis. The notice of claim was filed shortly after plaintiff's discharge from the hospital in October 2012, more than 90 days after the claim's accrual in November 2010 (see Allende v New York City Health & Hosps. Corp., 90 N.Y.2d 333, 337, 660 N.Y.S.2d 695, 683 N.E.2d 317 [1997] ).
We reject plaintiff's contention that both the November and May visits were part of a continuous course of treatment such that the statutory period for filing a notice of claim was tolled (see CPLR 214–a ; Allende, 90 N.Y.2d at 337–338, 660 N.Y.S.2d 695, 683 N.E.2d 317 ). Although it is clear that HHC anticipated further treatment by HHC at the time of discharge in 2010, it is likewise clear that plaintiff did not (see Young v New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296, 297, 670 N.Y.S.2d 169, 693 N.E.2d 196 [1998] ; Zelig v. Urken, 28 A.D.3d 318, 318, 813 N.Y.S.2d 77 [1st Dept.2006], lv. denied 7 N.Y.3d 708, 821 N.Y.S.2d 813, 854 N.E.2d 1277 [2006] ), given his failure to show up for follow-up appointments (see Batiste v. Brooklyn Hosp. Ctr., 255 A.D.2d 474, 475, 680 N.Y.S.2d 630 [2d Dept.1998] ; Bellmund v. Beth Israel Hosp., 131 A.D.2d 796, 797–798, 517 N.Y.S.2d 161 [2d Dept.1987] ) and his exclusive reliance on codefendant Xue Chao Wei (an acupuncturist who plaintiff believed to be a licensed physician) for treatment during the interim period (see Sposato v. Di Giacinto, 247 A.D.2d 267, 267, 668 N.Y.S.2d 612 [1st Dept.1998] ; Alverio v. New York Eye & Ear Infirmary, 123 A.D.2d 568, 569–570, 507 N.Y.S.2d 8 [1st Dept.1986]. Devadas v. Niksarli, 120 A.D.3d 1000, 1007, 992 N.Y.S.2d 197 [1st Dept.2014] ). Plaintiff's actions indicated an intention to discontinue his relationship with HHC; his return visit must therefore be deemed a "renewal, rather than a continuation, of the physician-patient relationship" (O'Donnell v. Siegel, 49 A.D.3d 415, 417, 854 N.Y.S.2d 45 [1st Dept.2008] [internal quotation marks omitted] ).
We have considered plaintiff's remaining arguments and find them unavailing.
ACOSTA, P.J., MAZZARELLI, MANZANET–DANIELS, WEBBER, JJ., concur.