Richardson v. New York City Health & Hospitals Corp.

Mar 25, 1993
Versions:191 A.D.2d 376
595 N.Y.S.2d 419

—Order, Supreme Court, Bronx County (Douglas McKeon, J.), entered April 9, 1991, which denied plaintiffs’ motion to serve a late notice of claim, unanimously affirmed, without costs.

The infant’s claim is time-barred since the maximum 10 year extension of the Statute of Limitations afforded to infants in medical malpractice actions by CPLR 208 runs from the initial negligent act, not from the end of any period of subsequent continuous treatment (Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630). The infant’s mother’s claim is also time-barred since it is derivative of the *377infant’s claim (see, Kramer v Twin County Grocers, 151 AD2d 722), and since the tolling of the Statute of Limitations pursuant to the continuous treatment doctrine is "personal to the recipient” (Wojnarowski v Cherry, 184 AD2d 353, 355). Plaintiffs estoppel argument was properly rejected by the IAS Court for failure to identify the party who intentionally misled plaintiff mother or articulate the nature and content of the alleged representation. Plaintiff mother’s claim, raised for the first time on appeal, that defendant nurse told her that the infant’s injuries resulted from rickets, rather than an improperly administered injection, is unsupported in the absence of the reports reflecting that the injuries resulted from a pathological fracture. Concur — Milonas, J. P., Rosenberger, Wallach and Ross, JJ.