

Martens v St. Luke's-Roosevelt Hosp. Ctr. (2015 NY Slip Op 04199)





Martens v St. Luke's-Roosevelt Hosp. Ctr.


2015 NY Slip Op 04199


Decided on May 14, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on May 14, 2015

Tom, J.P., Sweeny, Andrias, Moskowitz, Gische, JJ.


15088 107297/10

[*1] Michaela Martens, et al., Plaintiffs-Respondents,
vSt. Luke's-Roosevelt Hospital Center, et al., Defendants, Sophia Wu, M.D., Defendant-Appellant.


Martin Clearwater & Bell LLP, New York (Iryna S. Krauchanka and Robert T. Whittaker of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondents.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered June 2, 2014, which denied defendant Sophia Wu, M.D.'s motion for partial summary judgment dismissing a portion of plaintiffs' medical malpractice claim on statute of limitations grounds, unanimously affirmed, without costs.
In this action, plaintiffs allege that, during doctor's appointments spanning June 16, 2002 to September 21, 2009, defendant misdiagnosed a cancerous tumor as fibroids. In opposition to defendant's prima facie showing that plaintiffs' malpractice claim is time-barred to the extent it is based on treatment rendered prior to December 4, 2007, plaintiffs raised a triable issue of fact as to whether the statute of limitations is tolled by the continuous treatment doctrine (CPLR 214-a; Massie v Crawford, 78 NY2d 516, 519 [1991]). Defendant and plaintiff Michaela Martens agreed in June 2002 to monitor plaintiff's fibroids in lieu of removing them, so as not to disrupt plaintiff's fertility. Further, defendant directed plaintiff to return for follow-up visits generally within a year, or sooner if she had fibroid-related symptoms. Defendant inquired about plaintiff's fibroids at each visit, ordered ultrasounds specifically for the fibroids, and monitored them through physical exams and in ultrasounds. When plaintiff ultimately sought surgery to remove the fibroids, she returned and consulted with defendant. Given the foregoing, there is at least a triable issue of fact whether defendant's monitoring of plaintiff amounted to continuous treatment (Oksman v City of New York, 271 AD2d 213, 215 [1st Dept 2000]; Cherise v Braff, 50 AD3d 724, 726 [2d Dept 2008]).
Although plaintiff did not consistently return for follow-ups each year, the gaps in treatment alone do not require
dismissal of plaintiff's claim (see Richardson v Orentreich, 64 NY2d 896, 898-899 [1985]), especially since there is evidence that the gaps were due to plaintiff's demanding work and travel schedule.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 14, 2015
CLERK


