                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 16, 2015                     520235
_________________________________

FRANK H. FULLER JR., Individually
   and as Administrator of the
   Estate of JOYCE L. FULLER,
   Deceased,
                    Respondent-
                    Appellant,
      v                                     MEMORANDUM AND ORDER

DEBRA M. ABERDALE et al.,
                    Appellants-
                    Respondents,
                    et al.,
                    Defendants.
_________________________________


Calendar Date:   June 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Carter, Conboy, Case, Blackmore, Maloney & Laird, PC,
Albany (William D. Yoquinto of counsel), for Debra M. Aberdale
and others, appellants-respondents.

      Thorn Gershon Tymann & Bonanni, LLP, Albany (Erin Mead of
counsel), for Richard MacDowell, appellant-respondent.

      Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of
counsel), for Frank H. Fuller Jr., respondent-appellant.

      Maguire Cardona, PC, Albany (Alicia M. Dodge of counsel),
for Richard Clift and another, appellants-respondents.

                             __________
                              -2-                520235

Lynch, J.

      Cross appeals (1) from an order of the Supreme Court
(Connolly, J.), entered March 11, 2014 in Albany County, which,
among other things, granted plaintiff's application to file
revised expert affidavits, and (2) from an order of said court,
entered August 6, 2014 in Albany County, which, among other
things, partially denied certain defendants' motions for summary
judgment dismissing the amended complaint against them.

      This medical malpractice action arises out of the medical
care provided to Joyce L. Fuller (hereinafter decedent), who was
diagnosed with stage IV rectal cancer in September 2008 and
passed away in April 2010 at the age of 47. Plaintiff,
decedent's spouse, commenced this action in November 2010,
raising the core claim that certain medical professionals who
treated her from 2006 through 2008 failed to timely diagnose
decedent's cancer, depriving her of an opportunity for survival
(see Schaub v Cooper, 34 AD3d 268, 270 [2006]; Provost v Hassam,
256 AD2d 875, 878-879 [1998]). Following the completion of
discovery, several defendants moved for summary judgment
dismissing the complaint. Initially, by order entered in March
2014, Supreme Court determined to accept untimely expert
opposition affidavits submitted by plaintiff. By order entered
in August 2014, the court granted the motions of defendant
Richard Clift, an internist and gastroenterologist, and his
employer, defendant Albany Gastroenterology Consultants, P.C.
(hereinafter AGC), and dismissed the complaint against them as
untimely in part and for lack of causation. The court also
granted the motion of defendant Roy Fruiterman, who was employed
by defendant Community Care Physicians, P.C. (hereinafter CCP),
dismissing the complaint against him for lack of causation. With
respect to defendants Debra M. Aberdale, Jeffrey Henderson and
Richard MacDowell, who also were employed by CCP during the
relevant time period, the court granted their motions only to the
extent of treatment provided during 2008, but left intact the
claim pertaining to treatment provided in 2007. Aberdale,
Henderson, Fruiterman, CCP, MacDowell, Clift and AGC appeal from
the March 2014 order, and plaintiff cross-appeals from that
order. Aberdale, Henderson, CCP and MacDowell also appeal from
the August 2014 order, and plaintiff cross-appeals therefrom.
                              -3-                520235

      Initially, we find that Supreme Court did not abuse its
discretion in considering plaintiff's untimely expert affidavits.
Supreme Court, at plaintiff's request, extended the return date
of moving defendants' motions to December 6, 2013, with
plaintiff's responding papers due November 27, 2013. Plaintiff
submitted unsigned copies of three expert affidavits on November
27, 2013. By letter dated December 4, 2013, plaintiff requested
permission to substitute the executed affidavit of his general
surgery expert for the previous unsigned affidavit. Several of
the moving defendants objected, pointing out that the affidavit
had been modified. By letter dated December 6, 2013, plaintiff's
counsel explained that there was a delay in receiving the signed
affidavits from his experts and that the changes made by the
expert were unanticipated. In addition, plaintiff further
submitted a signed version of his gastroenterology expert's
affidavit, noting that it too had been unexpectedly modified. On
December 9, 2013, plaintiff submitted a signed copy of his
hematology expert's affidavit. Original affidavits from all
three experts were submitted on December 17, 2013. Following a
conference on February 7, 2014, Supreme Court determined to
accept the affidavits on condition that plaintiff's counsel pay
$1,000 to each defense firm.

      In an instance, as here, where a party submits unsworn
affidavits in opposition to a motion, and offers the late
substitute of signed affidavits, the decision whether to accept
the late submission falls within the trial court's discretion
(see Fleck v Calabro, 268 AD2d 738, 738 [2000]). In our view,
plaintiff's counsel's excuse in failing to timely obtain and
submit signed affidavits from his three experts essentially
amounted to law office failure (see Associates First Capital v
Crabill, 51 AD3d 1186, 1187-1188 [2008], lv denied 11 NY3d 702
[2008]). Moreover, counsel's failure to inform defendants up
front that the redacted copies served on November 27, 2013 were
not actually signed was misleading. Nonetheless, plaintiff's
counsel readily acknowledged that he was unaware that two of the
experts altered the language in their signed affidavits, the
delay here was minimal and defendants were all given an
opportunity to further respond to the revised expert affidavits.
Given our preference for resolving cases on the merits, we find
that Supreme Court reasonably fashioned a remedy to accept the
                              -4-                520235

unorthodox filing, while at the same time imposing a monetary
sanction commensurate with the disruption caused by plaintiff's
counsel (see Rosenblatt v New York City Tr. Auth., 122 AD3d 410,
410-411 [2014]; Wilcox v Newark Val. Cent. Sch. Dist., 107 AD3d
1127, 1130-1131 [2013]; Associates First Capital v Crabill, 51
AD3d at 1188; Gokey v DeCicco, 24 AD3d 860, 862 [2005]; Indrunas
v Escher Constr. Corp., 277 AD2d 28, 28-29 [2000]).

      Turning to plaintiff's medical malpractice claims, the
burden in a medical malpractice action is to establish both a
deviation from accepted practice and that the deviation was a
proximate cause of the injury (see Suib v Keller, 6 AD3d 805, 806
[2004]). On a summary judgment motion, a defendant is required
to establish through competent evidence "either that there was no
departure from accepted standards of practice in [the]
plaintiff's treatment or that any such deviation did not injure
[the] plaintiff" (Rivera v Albany Med. Ctr. Hosp., 119 AD3d 1135,
1137 [2014]). This burden may be satisfied through a
"physician's affidavit or affirmation describing the facts in
specific detail and opining that the care provided did not
deviate from the applicable standard of care" (Cole v Champlain
Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285 [2014].

      Here, the record shows that decedent first sought treatment
from AGC and Clift in January 2006 for symptoms of dyspepsia and
upper abdominal discomfort. In view of decedent's long history
of symptoms, including abdominal pain and heartburn, Clift
recommended an endoscopy. The endoscopy was performed in
February 2006 and decedent was diagnosed with having non-erosive
reflux disease. Decedent was advised to schedule a follow-up
appointment in six months. While the record indicates that
Clift's office sent a reminder notice in August 2006, decedent
did not treat with Clift again until July 2008.

      As relevant to this action, decedent's course of treatment
with Aberdale, Henderson, MacDowell and CCP (hereinafter
collectively referred to as the CCP defendants), began on October
12, 2007 when decedent, who went to her primary care provider
complaining of upper abdominal and stomach pain, constipation and
hemorrhoids, was examined by Aberdale, a nurse practitioner.
Aberdale performed an abdominal and external rectal examination
                              -5-                520235

of decedent, ordered blood work and an ultrasound to assess the
gallbladder, the results of which were described as normal or
unremarkable, and instructed decedent to go to the emergency room
if her pain continued or worsened. Later that evening, decedent
did go to the emergency room with complaints of abdominal pain.
On October 24, 2007, decedent was examined by Henderson, an
internist, for complaints of epigastric pain. Henderson, in
turn, referred decedent to MacDowell, a surgeon. When decedent
saw MacDowell on October 29, 2007, she complained of abdominal
pain, nausea and bloating. MacDowell ordered a gallbladder test
that produced normal, albeit not ideal, results. Nonetheless, in
view of decedent's symptoms and a family history showing that
both her mother and sister had their gallbladders removed,
MacDowell surgically removed decedent's gallbladder on November
6, 2007. Decedent followed up with MacDowell on November 21,
2007, and reported that her pain had subsided, but that she was
experiencing pain and "early satiety." On November 27, 2007,
decedent again sought treatment from Henderson, who performed an
external rectal examination to confirm the presence of a
hemorrhoid. At her final visit with MacDowell on January 9,
2008, decedent was still reporting "digestive problems" and pain.
According to MacDowell, these were normal postoperative symptoms.

      In July 2008, after she returned to Clift upon a referral
by Fruiterman, Clift diagnosed decedent with diverticulitis,
prescribed a course of antibiotics and recommended that she
undergo a colonoscopy once she finished the medication. When
decedent saw Clift again on August 15, 2008 with symptoms of
rectal bleeding, he scheduled the colonoscopy, which was
performed on September 16, 2008. The procedure revealed a rectal
mass subsequently determined to be malignant, and later testing
revealed that the cancer had metastasized to decedent's liver and
a lymph node. Radiation and chemotherapy treatment were pursued
with limited success.

      Plaintiff maintains that AGC, Clift and the CCP defendants
deviated from the standard of care by failing to take prompt
steps to identify the tumor, either through a digital rectal
examination or a colonoscopy, throughout the course of treatment
beginning in January 2006 through September 2008.
Correspondingly, plaintiff asserts early detection would have
                              -6-                520235

allowed for viable treatment before the cancer metastasized to
decedent's liver and lymph node. Since the statute of
limitations governing a medical malpractice claim is 2½ years,
the services provided in 2006 fall beyond the limitations period
unless, as plaintiff contends, there was a continuous course of
treatment provided by Clift (see CPLR 214-a; Nykorchuck v
Henriques, 78 NY2d 255, 258 [1991]). Under the continuous course
of treatment doctrine, the 2½-year period does not begin to run
until the course of the treatment ends, provided "the course of
treatment which includes the wrongful acts or omissions has run
continuously and is related to the same original condition or
complaint" (Nykorchuck v Henriques, 78 NY2d at 258 [internal
quotation marks and citations omitted]).

      Given the treatment sequence outlined above, we find that
Supreme Court properly determined that the continuous treatment
doctrine did not apply to toll the statute of limitations for
treatment that Clift provided in 2006. At that time, decedent
was treated for upper abdominal pain and, while a colonoscopy and
follow-up appointment were recommended, no such appointment was
made for over 2½ years. By comparison, in July 2008, decedent
was referred to Clift for complaints of lower abdominal pain and
rectal bleeding. We conclude that the record does not support
either a finding that treatment was rendered for the same illness
or that there was a mutual anticipation of future treatment (see
Casale v Hena, 270 AD2d 680, 682 [2000]; compare Aulita v Chang,
44 AD3d 1206, 1208-1209 [2007]). It follows that any claim for
services rendered by Clift in 2006 is barred by the statute of
limitations.

      In response to plaintiff's timely claims with regard to the
treatment he provided in 2008, Clift submitted an affidavit
wherein he set forth the treatment he provided in July 2008, when
decedent had a CT scan that revealed diverticulitis but no mass,
and August 2008, when he scheduled a colonoscopy based on
decedent's complaints of rectal bleeding. He opined that it was
within the standard of care to treat the diverticulitis before
performing a colonoscopy. Further, although Clift also conceded
that he did not perform a digital rectal examination in July or
August 2008, he explained that, since the September 2008
colonoscopy revealed that the tumor was located 10 centimeters
                              -7-                520235

from the anal verge, it would not have been discovered upon such
an examination.1 Moreover, Clift opined that, since the
colonoscopy revealed that decedent had stage IV adenocarcinoma,
the earlier detection of this condition on July 22, 2008 "would
not have affected her care, treatment or likelihood of a cure."
In our view, Clift's submissions satisfied his burden of proof as
to both the care provided and as to proximate cause, and Supreme
Court properly shifted the burden to plaintiff to provide
competent expert medical opinion evidence raising genuine issues
of material fact as to deviation and causation (see Friedland v
Vassar Bros. Med. Ctr., 119 AD3d 1183, 1187 [2014]). Because
plaintiff offered no expert proof that Clift's treatment in 2008
adversely affected decedent's prognosis, Supreme Court properly
dismissed plaintiff's claims against Clift and AGC (see Caulkins
v Vicinanzo, 71 AD3d 1224, 1227 [2010]; Giambona v Stein, 265
AD2d 775, 776 [1999]).2

      We turn next to the CCP defendants. With specific
reference to the course of treatment provided, Aberdale,
Henderson and MacDowell each submitted an affidavit opining that
the care provided was appropriate and that the symptoms
encountered, which did not include lower abdominal pain, did not


    1
        Plaintiff's expert gastroenterologist opined that Clift
was required to perform a digital rectal exam on July 22, 2008,
and that, had he done so, he would have detected the tumor
located only five centimeters from the anal verge. The flaw in
this assessment, as recognized by Supreme Court, is that the
medical records actually place the tumor 10 centimeters from the
anal verge. In his colonoscopy procedure report, Clift described
the location of the tumor as "10 cm from the entry site, and
extending proximally for 5 cm." In a corresponding letter
referral that same day, Clift elaborated that the tumor was found
"beginning 10 cm from the anal verge and extending another 5 cm
proximally to 15 cm from the anal verge." The location assumed
by plaintiff's expert finds no support in the medical records.
    2
        As discussed in greater detail below, plaintiff’s
hematologist does not address causation with regard to treatment
provided by Clift, AGC or the CCP defendants in 2008.
                               -8-                520235

warrant either a digital rectal examination, a pelvic examination
or the scheduling of a colonoscopy. In addition, MacDowell
submitted an expert affidavit from Jay Dewell Jr., a surgeon, who
reaffirmed MacDowell's diagnosis of gallbladder disease, that
surgery was warranted and that decedent's symptoms did not raise
a concern of colorectal cancer.

      The CCP defendants also submitted an affidavit by Sheila
Lemke, a physician board certified in hematology and oncology.
For her part, Lemke opined that, as of October 2007, decedent's
cancer had reached stage IV and had already metastasized to the
liver. According to Lemke, when decedent had surgery in December
2008, the surgeon noted that "she presented with synchronous
rectal and liver metastasis – meaning that the rectal mass and
metatastic disease to the liver developed concurrently." As
such, Lemke concluded that decedent's treatment options and
prognosis would not have changed even if the tumor was detected
in October 2007. In our view, Supreme Court properly determined
that the CCP defendants met their initial burden of establishing
that the treatment provided was within the standard of care.
Further, based on Lemke’s affidavit, we agree with Supreme Court
that, even if their treatment did fall below the standard of
care, the CCP defendants demonstrated that they did not affect
decedent's prognosis in any way.

      In response to the CCP defendants' prima facie showing as
to the standard of care and causation, plaintiff's
gastroenterology expert opined that, in view of decedent's
symptoms and the reported family history of colon polyps,
Aberdale and Henderson deviated from the standard of care by
failing to have decedent undergo a colonoscopy.3 Similarly,
plaintiff's general surgery expert opined that MacDowell deviated
from the standard of care by failing to refer decedent for a
colonoscopy. The record establishes that when decedent first saw
Clift on January 17, 2006, she indicated on her patient


     3
        Given the location of the tumor described above, we agree
with Supreme Court that there is no factual support for
plaintiff's malpractice claim based on the CCP defendants'
failure to perform a digital rectal examination.
                              -9-                520235

information sheet that there was a family medical history of
colon polyps. The same day, Clift wrote his letter report to
Michael Greenblatt, decedent's referring physician at CCP,
advising that decedent's family history was "notable for a father
who is alive at 76 with . . . a history of colon polyps."
Further, Clift's observation was coupled with a recommendation to
consider having a colonoscopy in the near future.

      Plaintiff's gastroenterology expert opined that the CCP
defendants were required, under the standard of care, to review
the medical history in decedent's chart. This expert further
opined that, in view of decedent's history, her persistent
symptoms and the fact that she had yet to have a colonoscopy, an
immediate referral for a colonoscopy was required. Plaintiff's
general surgeon expert echoed the same opinion concerning
MacDowell. Although Clift further explained that decedent
informed him that she was uncertain whether her father had
polyps, neither decedent's patient information sheet nor Clift's
letter report to Greenblatt indicates any such uncertainty. Nor
do we agree with the CCP defendants' contention that the asserted
failure to review decedent's chart constitutes a novel theory.
Such a review certainly falls within plaintiff's particularized
claims that the CCP defendants failed to properly evaluate
decedent's complaints and diagnose decedent's cancer.

      In response to Lemke's opinion as to causation, plaintiff
submitted an affidavit by a hematologist who expressly refuted
Lemke's claim that the cancer had metastasized to decedent's
liver by October 2007, and opined that a timely diagnosis "would
have given the decedent a better likelihood of surviving this
type of cancer." In rendering this opinion, the expert pointed
to a CT scan performed on October 13, 2007, an abdominal sonogram
and the gallbladder surgery MacDowell performed in November 2007,
none of which indicated any liver metastasis. "Where oncological
experts present competing opinions as to causation, particularly
about the progression of the disease, there is an issue of fact
for the jury to decide" (Polanco v Reed, 105 AD3d 438, 441
[2013]; see Provost v Hassam, 256 AD2d at 878-879). Here, we
agree with Supreme Court's finding that plaintiff's experts
raised genuine issues of fact as to whether the CCP defendants
deviated from the standard of care and proximate cause with
                              -10-                 520235

respect to services provided during 2007.

      Finally, we recognize that plaintiff's gastroenterologist
expert opined that, as Aberdale's supervising physician,
Fruiterman breached his duty to intercede and recommend an
appropriate referral for a colonoscopy (see Kavanaugh v Nussbaum,
71 NY2d 535, 546 [1988]; Ruggiero v Miles, 125 AD3d 1216, 1216-
1217 [2015]). That theory of vicarious liability, however, was
not set forth in plaintiff's bill of particulars and, thus,
Fruiterman's motion for summary judgment was properly granted
(see Price-Linden v State of New York, 119 AD3d 1192, 1192-1193
[2014]; Suits v Wyckoff Hgts. Med. Ctr., 84 AD3d 487, 489
[2011]).

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the orders are affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
