Opinion
June 14, 1976
In an action inter alia to recover damages for medical malpractice, plaintiff appeals from an order of the Supreme Court, Westchester County, entered February 5, 1976, which granted defendant Reilly's motion for summary judgment on the ground that the action had not been timely commenced as against him. Order reversed, with $50 costs and disbursements, and motion denied. On this record it is clear that there is a triable question of fact as to whether respondent engaged in a continuous course of treatment. The facts in this case differ sharply from those in Davis v City of New York ( 47 A.D.2d 529, affd 38 N.Y.2d 257) upon which respondent relies. Martuscello, Acting P.J., Damiani, Shapiro and Titone, JJ., concur; Cohalan, J., dissents and votes to affirm the order.