Opinion
November 20, 2001.
Order, Supreme Court, Bronx County (Jerry Crispino, J.), entered August 16, 2000, which, in a medical malpractice action, insofar as appealed from, denied defendant-appellant's motion for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.
Matthew Gaier, for plaintiff-respondent.
Katherine Herr Solomon, for defendant-appellant.
Before: Rosenberger, J.P., Nardelli, Ellerin, Lerner, JJ.
The affidavit of plaintiff's expert radiologist raises an issue of fact concerning appellant's liability for plaintiff's injuries (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 327). Concerning the Statute of Limitations, the prior order of another Justice, which held that issues of fact precluded determination as to whether the continuous treatment doctrine applied to make the action timely as against appellant, did not create law of the case precluding another Justice from considering that question on the basis of additional evidence (see, Holloway v. Cha Cha Laundry, 97 A.D.2d 385, 386). Such evidence clearly demonstrates that the action is timely as against appellant (see, Watkins v. Fromm, 108 A.D.2d 233). Appellant's challenge to the cause of action for lack of informed consent is improperly raised for the first time on appeal, and we decline to review it (see, Recovery Consultants v. Shih-Hsieh, 141 A.D.2d 272, 276).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.