Lohnas v. LuziLohnas v. Luzi
It is hereby ordered that said appeal is unanimously dismissed without costs (see Loafin’ Tree Rest. v Pardi [appeal No. 1], 162 AD2d 985 [1990]). Present—Whalen, P.J., Centra, Carni, DeJoseph and Troutman, JJ.
DARLENE M. LOHNAS, Respondent, v FRANK A. LUZI, JR., M.D., et al., Appellants. (Appeal No. 2.) [33 NYS3d 637]—
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered February 4, 2015. The order granted defendants’ motion for leave to reargue and, upon reargument, denied defendants’ motion for partial summary judgment.
It is hereby ordered that the order so appealed from is modified on the law by granting the motion for partial summary judgment in part and dismissing the complaint to the extent that the complaint, as amplified by the bill of particulars, asserts that defendants are equitably estopped from asserting as a defense the statute of limitations for medical malpractice, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action on September 30, 2008, seeking damages for injuries allegedly sustained as the result of the negligent care and treatment by Frank A. Luzi, Jr., M.D. (defendant) throughout the course of the parties’ seven-year doctor-patient relationship. Defendants moved for partial summary judgment dismissing as time-barred the claims arising out of defendant‘s treatment of plaintiff‘s shoulder prior to March 30, 2006, contending that the doctrines of continuous treatment and equitable estoppel are not applicable to the facts herein. Supreme Court denied the motion, determining that there are triable issues of fact