Opinion
13047 Index No. 20678/12 Case No. 2020-02014
02-04-2021
Jenie M. Chavez TURCIOS et al., Plaintiffs–Appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant–Respondent.
Mitchell D. Kessler, New York, for appellants. James E. Johnson, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Mitchell D. Kessler, New York, for appellants.
James E. Johnson, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Manzanet–Daniels, J.P., Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (George J. Silver, J.), entered on or about November 21, 2019, which granted defendant's motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.
Supreme Court correctly determined that the continuous treatment doctrine did not apply to toll the statutory period in which plaintiff was required to serve her notice of claim on defendant (see Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 337–338, 660 N.Y.S.2d 695, 683 N.E.2d 317 [1997] ). The post-stroke rehabilitative care that plaintiff received at Jacobi Medical Center did not constitute a continuation of treatment for the condition that gave rise to the alleged malpractice, which, as described in her bill of particulars, was limited to the hospital's failure to diagnose and treat her headache when she presented in the emergency department on May 10, 2011 (see Evans v. Ginsberg, 292 A.D.2d 566, 739 N.Y.S.2d 429 [2d Dept. 2002] ; Almodovar v. St. Vincent's Hosp. & Med. Ctr. of N.Y., 236 A.D.2d 435, 653 N.Y.S.2d 664 [2d Dept. 1997] ). Moreover, before plaintiff returned to Jacobi for post-stroke care, the stroke had been diagnosed and treated at Montefiore Medical Center, a different facility, where she continued to receive follow-up care from its neurology and stroke specialists (see Allende, 90 N.Y.2d at 339–340, 660 N.Y.S.2d 695, 683 N.E.2d 317 ).