Capece v. NashCapece v. Nash
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order on motion of this Court dated September 29, 2009 (Capece v Nash, 65 AD3d 1270 [2009]), is recalled and vacated, and the following decision and order on motion is substituted therefor: In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 23, 2007, which granted the defendant‘s motion for summary judgment dismissing, as time-barred, so much of the complaint as was based upon alleged acts of medical malpractice committed prior to May 21, 2001, and for summary judgment dismissing the wrongful death cause of action, and denied her cross motion to strike the defendant‘s affirmative defense based on the statute of limitations. Justice Mastro has been substituted for former Justice Spolzino (see
Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendant‘s motion which was for summary judgment dismissing the wrongful death cause of action to the extent it is premised on acts al
The plaintiff commenced this action on November 20, 2003, alleging, inter alia, that the defendant was negligent in his treatment of the decedent from November 1999 through May 24, 2001. The defendant, an internist who specializes in infectious diseases and pulmonary medicine, treated the decedent between December 3, 1999, and July 7, 2000. The decedent consulted the defendant in connection with a condition in her right lung that had been disclosed during screening at a clinic on November 17, 1999. The treatment included a needle biopsy in December 1999 that was negative, a recommendation that a follow-up CT scan be conducted in three months, and a follow-up CT scan that was conducted on June 1, 2000. The parties disagree as to the scope of the defendant‘s recommendations made on June 6, 2000, but agree that there was a recommendation that the decedent have an additional CT scan in six months. The defendant also requested that the decedent submit a copy of the original CT scan that had been conducted at the screening clinic, for comparison with the June 1, 2000, scan. The decedent submitted a copy of that earlier scan, under cover letter dated July 7, 2000, and the defendant made a notation for his staff to send the scan to the imaging center that conducted the June 1, 2000, scan for comparison. The decedent did not make any future appointments with the defendant, she did not have the recommended six-month follow-up CT scan, and there is no assertion that she made any inquiry of the defendant as to the status of the proposed comparison of the two CT scans.
In March 2001, the decedent was hospitalized for pneumonia and chronic obstructive pulmonary disease. During that
The defendant established his prima facie entitlement to judgment as a matter of law dismissing, as time-barred, so much of the complaint as was based on alleged acts committed prior to July 13, 2000, the period that was more than 2 1/2 years prior to the death of the decedent (see
However, the Supreme Court erred in granting that branch of
The plaintiff‘s remaining contentions are without merit.
Mastro, J.P., Santucci, Angiolillo and Balkin, JJ., concur.