Opinion
918 CA 20-01466
12-23-2021
Timothy B. O'SHEA and Margaret A. O'Shea, Plaintiffs-Respondents, v. Joseph F. FEMIA, M.D., and Joseph F. Femia, M.D., P.C., Defendants-Appellants.
GALE GALE & HUNT, LLC, FAYETTEVILLE (KEVIN T. HUNT OF COUNSEL), FOR DEFENDANTS-APPELLANTS. ROBERT F. JULIAN, P.C., UTICA (ROBERT F. JULIAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
GALE GALE & HUNT, LLC, FAYETTEVILLE (KEVIN T. HUNT OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROBERT F. JULIAN, P.C., UTICA (ROBERT F. JULIAN OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the cross motion is denied, the fifth affirmative defense is reinstated, the motion is granted in its entirety, and the complaint is dismissed.
Memorandum: In this medical malpractice action, defendants appeal from those parts of an order that denied in part their motion for summary judgment dismissing the complaint and granted plaintiffs’ cross motion to strike defendants’ statute of limitations defense. Defendants met their initial burden of establishing that the action was time-barred with respect to services rendered prior to September 8, 2014, and plaintiffs failed to raise a triable issue of fact with respect to the continuous treatment doctrine (see CPLR 214-a ; De Marco v. Santo , 43 A.D.3d 1285, 1286, 842 N.Y.S.2d 642 [4th Dept. 2007] ; Trimper v. Jones , 37 A.D.3d 1154, 1155-1156, 829 N.Y.S.2d 786 [4th Dept. 2007] ; Sofia v. Jimenez-Rueda , 35 A.D.3d 1247, 1248-1249, 827 N.Y.S.2d 385 [4th Dept. 2006] ; see generally Massie v. Crawford , 78 N.Y.2d 516, 519-520, 577 N.Y.S.2d 223, 583 N.E.2d 935 [1991], rearg denied 79 N.Y.2d 978, 583 N.Y.S.2d 196, 592 N.E.2d 804 [1992] ). With respect to services rendered after September 8, 2014, defendants met their initial burden with respect to deviation from the applicable standard of care, and plaintiffs failed to raise a triable issue of fact in opposition (see Martingano v. Hall , 188 A.D.3d 1638, 1639-1640, 135 N.Y.S.3d 719 [4th Dept. 2020], lv denied 36 N.Y.3d 912, 2021 WL 1741737 [2021] ; Lake v. Kaleida Health , 59 A.D.3d 966, 966-967, 872 N.Y.S.2d 822 [4th Dept. 2009] ). We therefore reverse the order insofar as appealed from, deny the cross motion, reinstate the fifth affirmative defense, grant the motion in its entirety, and dismiss the complaint.