Opinion
December 4, 1995
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the order is affirmed, with costs.
The plaintiff seeks to recover damages for the injuries she claims to have suffered as the result of malpractice allegedly committed during two procedures performed at the City Hospital Center at Elmhurst on June 27, 1972, and August 6, 1972. Hospital records indicate that, on the former date, the plaintiff "underwent elective varicose vein surgery, high ligation and stripping of the left saphenous vein" and that, on the latter date, she "underwent ligation of perforators and varicose veins * * * under local anesthesia".
The plaintiff filed a notice of claim in February 1977. In May 1977 she served a summons and complaint. We agree with the Supreme Court that the plaintiff's action should be dismissed due to the plaintiff's failure to serve a timely notice of claim (see, McKinney's Uncons Laws of N Y § 7401 [2]; General Municipal Law § 50-e) and because the plaintiff's medical malpractice action was not commenced within the applicable Statute of Limitations.
The plaintiff argues that both the filing of her notice of claim and the commencement of her malpractice action should be deemed timely by virtue of the continuous treatment doctrine. In her affidavit in opposition to the motion to dismiss, the plaintiff asserted that she had "been seen at the City Hospital at Elmhurst numerous times from June 27, 1972, through the present for a condition concerning my left leg". She asserted that she was treated for this condition on December 15, 1977. However, this contradicts the testimony given by the plaintiff at her deposition, when she stated that the last time her leg had been treated prior to the filing of the notice of claim was in 1974 and that her leg was not tested again until 1990.
Once the defendant established its entitlement to dismissal of the complaint due to the plaintiff's failure to serve a timely notice of claim and a timely summons and complaint, the burden fell to the plaintiff to demonstrate the applicability of the continuous treatment doctrine (see, e.g., Cox v Kingsboro Med. Group, 219 A.D.2d 214; Ganess v City of New York, 207 A.D.2d 765, affd 85 N.Y.2d 733). Thus, she had the burden of showing that the defendants' agents treated or at least monitored her with respect to some condition specifically related to her varicose vein surgery (see, Massie v Crawford, 78 N.Y.2d 516; Matter of Cooper v Kaplan, 78 N.Y.2d 1103; Ganess v City of New York, supra) and that such treatments or examinations occurred at intervals separated by no more than one year and ninety days ( see, Concha v Local 1115 Empls. Union Trust Fund, 216 A.D.2d 348; Arias v Southside Hosp., 203 A.D.2d 220; Curcio v Ippolito, 97 A.D.2d 497, affd 63 N.Y.2d 967; cf., Spear v Rish, 161 A.D.2d 197). The plaintiff's affidavit, which was not only conclusory but also contradicted by her own deposition testimony, did not constitute the sort of evidence needed to satisfy this burden (see, D'Acunzo v Rouse S.I., Shopping Ctr., 214 A.D.2d 531; Matter of Kalati v Independent Diamond Brokers, 209 A.D.2d 412).
For these reasons, the order appealed from is affirmed. Bracken, J.P., Rosenblatt, Miller and Krausman, JJ., concur.