Hall v. Bolognese

210 A.D.3d 958

178 N.Y.S.3d 564

Darla HALL, appellant, et al., plaintiff,

v.Paolo A. BOLOGNESE, etc., et al., respondents.

2018-13192, 2018-13730, 2019-03191

Index No. 602579/15

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 24, 2022

November 23, 2022

Lieff Cabraser Heimann & Bernstein, LLP, New York, NY (Wendy R. Fleishman and Daniel Leathers of counsel), for appellant.

Martin Clearwater & Bell LLP, East Meadow, NY (Gregory A. Cascino, Rosaleen T. McCrory, Daniel L. Freidlin, and Ryan T. Cox of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff Darla Hall appeals from (1) an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered October 24, 2018, (2) a judgment of the same court entered November 13, 2018, and (3) an order of the same court entered January 30, 2019. The order entered October 24, 2018, insofar as appealed from, granted those branches of the defendants’ motion which were, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon treatment provided to the plaintiff Darla Hall prior to October 24, 2012, insofar as asserted by the plaintiff Darla Hall against the defendants Paolo A. Bolognese, North Shore University Hospital, and North Shore–Long Island Jewish Health System, Inc., and for summary judgment dismissing the complaint insofar as asserted by the plaintiff Darla Hall against those defendants. The judgment, insofar as appealed from, upon the order entered October 24, 2018, is in favor of the defendants Paolo A. Bolognese, North Shore University Hospital, and North Shore–Long Island Jewish Health System, Inc., and against the plaintiff Darla Hall dismissing the complaint insofar as asserted by that plaintiff against them. The order entered January 30, 2019, insofar as appealed from, denied that branch of the plaintiffs’ motion which was, in effect, for leave to renew their opposition to that branch of the defendants’ prior motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based upon treatment provided to the plaintiff Darla Hall prior to October 24, 2012, insofar as asserted by the plaintiff Darla Hall against the defendants Paolo A. Bolognese, North Shore University Hospital, and North Shore–Long Island Jewish Health System, Inc., and denied that branch of the plaintiffs’ separate motion which was pursuant to CPLR 5015(a) to vacate so much of the judgment as was in favor of the defendants Paolo A. Bolognese, North Shore University Hospital, and North Shore–Long Island Jewish Health System, Inc., and against the plaintiff Darla Hall dismissing the complaint insofar as asserted by that plaintiff against them.

ORDERED that the appeal from the order entered October 24, 2018, is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, those branches of the defendants’ motion which were, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based on treatment provided to the plaintiff Darla Hall prior to October 24, 2012, insofar as asserted by the plaintiff Darla Hall against the defendants Paolo A. Bolognese, North Shore University Hospital, and North Shore–Long Island Jewish Health System, Inc., and for summary judgment dismissing the complaint insofar as asserted by the plaintiff Darla Hall against those defendants are denied, the complaint insofar as asserted by the plaintiff Darla Hall against those defendants is reinstated, and the order entered October 24, 2018, is modified accordingly; and it is further,

ORDERED that the appeal from the order entered January 30, 2019, is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

The appeal from the order entered October 24, 2018, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In April 2015, the plaintiff Darla Hall (hereinafter the injured plaintiff), and her husband suing derivatively, commenced this action against the defendants, inter alia, to recover damages for medical malpractice and lack of informed consent. The plaintiffs alleged, among other things, that in October 2007 the injured plaintiff presented to the defendant Chiari Institute (hereinafter TCI), an unincorporated entity of the defendant North Shore–Long Island Jewish Health System, Inc. (hereinafter North Shore–LIJ), with complaints of head and neck pain, at which time she was misdiagnosed as suffering from Chiari I malformation, Ehlers Danlos Syndrome, tethered cord syndrome, cervical syringomyelia, and possible craniocervical instability. The plaintiffs further alleged that, as a result of the misdiagnoses, the injured plaintiff was wrongly induced by physicians at TCI, including the defendant Paolo A. Bolognese, to undergo five unnecessary surgical procedures to her brain and spine at the defendant North Shore University Hospital between May 7, 2008, and November 6, 2012, and that those surgeries were performed improperly and without her informed consent. Following discovery, the defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted by the injured plaintiff against Bolognese, North Shore–LIJ, and North Shore University Hospital (hereinafter collectively the North Shore defendants), and, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based on treatment provided to the injured plaintiff prior to October 24, 2012, insofar as asserted by the injured plaintiff against the North Shore defendants. In an order entered October 24, 2018, the Supreme Court, among other things, granted those branches of the defendants’ motion. On November 13, 2018, a judgment was entered, inter alia, dismissing the complaint insofar as asserted by the injured plaintiff against them. Thereafter, the plaintiffs moved, among other things, in effect, for leave to renew their opposition to that branch of the defendants’ prior motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based on treatment provided to the injured plaintiff prior to October 24, 2012, insofar as asserted by the injured plaintiff against the North Shore defendants. The plaintiffs subsequently moved, inter alia, pursuant to CPLR 5015(a) to vacate so much of the judgment as dismissed the complaint insofar as asserted by the injured plaintiff against those defendants. In an order entered January 30, 2019, the court denied both motions. The injured plaintiff appeals.

The Supreme Court erred in granting that branch of the defendants’ motion which was, in effect, pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, so much of the complaint as was based on treatment provided to the injured plaintiff prior to October 24, 2012, insofar as asserted by the injured plaintiff against the North Shore defendants. Actions asserting causes of action alleging medical malpractice and lack of informed consent " ‘must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure’ " ( Chvetsova v. Family Smile Dental, 202 A.D.3d 657, 658, 163 N.Y.S.3d 98, quoting Wright v. Southampton Hosp., 187 A.D.3d 1242, 1244, 131 N.Y.S.3d 216 [internal quotation marks omitted]). "A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired" ( Osborn v. DeChiara, 165 A.D.3d 1270, 1271, 87 N.Y.S.3d 97 ; see CPLR 214–a ). The burden then shifts to the plaintiff to present evidence raising a question of fact as to whether the action falls within an exception to the statute of limitations or whether the continuous treatment doctrine applies to toll the statute of limitations (see Osborn v. DeChiara, 165 A.D.3d at 1271–1272, 87 N.Y.S.3d 97 ).

Here, the defendants met their prima facie burden of demonstrating that the time within which to commence an action based on claims accruing prior to October 24, 2012, had expired when this action was commenced on April 24, 2015 (see CPLR 214–a ; Osborn v. DeChiara, 165 A.D.3d 1270, 87 N.Y.S.3d 97 ). However, in opposition, the plaintiffs raised a question of fact as to whether the continuous treatment doctrine tolled the statute of limitations for those claims (see CPLR 214–a ; Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 646 N.Y.S.2d 659, 669 N.E.2d 817 ; Borgia v. City of New York, 12 N.Y.2d 151, 157, 237 N.Y.S.2d 319, 187 N.E.2d 777 ). "The continuous treatment doctrine tolls the statute of limitations for a medical malpractice action when, inter alia, the plaintiff demonstrates that he or she continued to seek, and in fact obtained from the defendant physician during the relevant period, an actual course of treatment, denoted by affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications" ( Schwelnus v. Urological Assoc. of L.I., P.C., 94 A.D.3d 971, 973, 943 N.Y.S.2d 141 ; see Wright v. Southampton Hosp., 187 A.D.3d 1242, 131 N.Y.S.3d 216 ). Thus, continuous treatment may be found when a plaintiff ...