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REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION. 

The Third Department, reversing Supreme Court, determined that a report sought by plaintiffs was not part of a medical or quality assurance review function or participation in a medical malpractice prevention program and therefore was not privileged pursuant to Education Law § 6527 (3) and Public Health Law § 2805-m:

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…[W]we find that defendants failed to meet their burden of establishing the report’s privilege. Defendants did not submit an affidavit or other information from anyone with first-hand knowledge establishing that a review procedure was in place or that the report was obtained or maintained in accordance with any such review procedure … . Nevertheless, defendants argue that the face and content of the report clearly establish that it is a quality assurance review which is precluded from disclosure. Yet, nothing in the report reflects that the hospital’s Department of Patient Safety and Quality Improvement ever reviewed it … . Further, the report’s conclusory statement that it was prepared for quality assurance purposes and was shielded by the subject statutes is patently insufficient to satisfy the required standard … .

In short, the purpose of the Education Law and Public Health Law discovery exclusions is to encourage a candid peer review of physicians, and thereby improve the quality of medical care and prevent malpractice… , but such protections are not automatically available and do not prevent full disclosure where it should otherwise be provided … . Estate of Savage v Kredentser, 2017 NY Slip Op 03825, 3rd Dept 5-11-17

CIVIL PROCEDURE (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/MEDICAL MALPRACTICE (REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)/PRIVILEGE  (MEDICAL MALPRACTICE, DISCOVERY, REPORT REGARDING CARE OF PLAINTIFF’S DECEDENT WAS NOT PART OF A MEDICAL OR QUALITY ASSURANCE PROGRAM, WAS NOT PRIVILEGED UNDER THE EDUCATION LAW OR PUBLIC HEALTH LAW, AND WAS THEREFORE SUBJECT TO DISCOVERY IN THIS MEDICAL MALPRACTICE ACTION)

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MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED.

The First Department determined Supreme Court should not have denied a motion to compel discovery of New York Police Department documents solely because prior requests for the documents under the Freedom of Information Law were denied. The “public interest” privilege did not justify outright denial of the motion:

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… [T]the court erred in denying defendants’ motion outright because of the prior denials of their requests for the same information under the Freedom of Information Law (FOIL). “CPLR article 31 is not a statute specifically exempt[ing]’ public records from disclosure under FOIL” and “no provision of FOIL bars simultaneous use of both” CPLR 3101 and FOIL to procure discovery … .

The “public interest” privilege did not justify the outright denial of defendants’ motion, because the court did not engage in the requisite balancing of the public interest in encouraging witnesses to come forward to cooperate in pending criminal investigations against defendants’ need for the documents to defend against plaintiffs’ claim … . Accordingly, we find that remittal to the motion court for in camera review of the requested files is appropriate in this case, to give the court the opportunity to conduct the proper balancing, in the first instance, of the interests of both parties … . Smith v Watson, 2017 NY Slip Op 03878, 1st Dept 5-11-17

 

CIVIL PROCEDURE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/FREEDOM OF INFORMATION LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/DISCOVERY LAW (CIVIL PROCEDURE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PRIVILEGE (PUBLIC INTEREST PRIVILEGE, MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)/PUBLIC INTEREST PRIVILEGE (MOTION TO COMPEL DISCOVERY OF NYPD DOCUMENTS SHOULD NOT HAVE BEEN DENIED SOLELY BECAUSE FOIL REQUESTS FOR THE DOCUMENTS HAD BEEN DENIED)

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WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS.

The Second Department determined the defendants had demonstrated at a collateral source hearing that plaintiff will receive $205 per week in Workers’ Compensation benefits for the rest of her life. Even though the benefits were awarded after an unrelated 2002 accident, the damages awards for past and future lost income were reduced by $205 per week from the time of the 2010 accident (plaintiff was planning to return to work, and thereby lose the benefits, at the time of the 2010 accident):

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In “[a]ctions for personal injury . . . where the plaintiff seeks to recover for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings or other economic loss, evidence shall be admissible for consideration by the court to establish that any such past or future cost or expense was or will, with reasonable certainty, be replaced or indemnified, in whole or in part, from any collateral source, except for life insurance and those payments as to which there is a statutory right of reimbursement” (CPLR 4545[a]). The legislative intent of CPLR 4545(a) is to “eliminat[e] plaintiffs’ duplicative recoveries” … .. “The moving defendant bears the burden of establishing an entitlement to a collateral source reduction of an award for past or future economic loss” … .

“Reasonable certainty is understood as involving a quantum of proof that is greater than a preponderance of evidence but less than proof beyond a reasonable doubt. Each of the four judicial departments has interpreted reasonable certainty’ as akin to the clear and convincing evidence standard, that the result urged by the defendant be highly probable'” … . In order to determine whether a party has established with “reasonable certainty” a payment by a collateral source, the defendants first “must establish with reasonable certainty that the plaintiff has received, or will receive, payments from a collateral source” … , and, second, “that collateral source payments which have been or will be received by the plaintiff must be shown to specifically correspond to particular items of economic loss awarded by the trier of fact” … . “Each case involving potential future collateral source reductions to awards for economic loss must be judged on its own unique facts and merits” … . McKnight v New York City Tr. Auth., 2017 NY Slip Op 03740, 2nd Dept 5-10-17

 

NEGLIGENCE (WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/CIVIL PROCEDURE (COLLATERAL SOURCE, DAMAGES, NEGLIGENCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/WORKERS’ COMPENSATION (NEGLIGENCE, DAMAGES, COLLATERAL SOURCE, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/COLLATERAL SOURCE (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)/DAMAGES (CIVIL PROCEDURE, NEGLIGENCE, DAMAGES, WORKERS’ COMPENSATION BENEFITS WERE A COLLATERAL SOURCE, DAMAGES FOR PAST AND FUTURE LOST WAGES REDUCED BY THE AMOUNT OF THE BENEFITS)

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PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 42 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL.

The Second Department, reversing Supreme Court, determined plaintiff had stated a cause of action under 18 USC 1983, against the county, for violation of his right to a speedy trial:

We reject the County’s argument that it cannot be held liable pursuant to 42 USC § 1983 for the alleged misconduct of the office of the District Attorney. Where, as here, a complaint alleges a failure to train and supervise employees regarding legal obligations, “liability for the District Attorney’s actions in his role as a manager of the District Attorney’s office rests with the county” …  and a claim pursuant to 42 USC § 1983 may therefore be maintained against the County for the conduct of the District Attorney’s office insofar as the District Attorney acted as a County policymaker … . Moreover, here, the complaint sufficiently alleges that the District Attorney’s office failed to train and supervise its assistant district attorneys with respect to the constitutional speedy trial rights of the accused persons with whom they interacted, to the extent that they manifested deliberate indifference to those rights … . Victor v County of Suffolk, 2017 NY Slip Op 03796, 2nd Dept 5-10-17

CRIMINAL LAW (PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/CIVIL RIGHTS LAW (18 USC 1983) (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/MUNICIPAL LAW (SPEEDY TRIAL, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)/SPEEDY TRIAL (CIVIL RIGHTS VIOLATION, PLAINTIFF STATED A CAUSE OF ACTION AGAINST THE COUNTY UNDER 18 USC 1983 FOR VIOLATION OF HIS RIGHT TO A SPEEDY TRIAL)

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MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY.

The Second Department determined plaintiff’s motion to set aside the verdict in this personal injury case was properly granted. The jury found defendant negligent but went on to find the negligence was not the proximate cause of the injury:

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… [T]he plaintiff … was injured when an ammunition reloading device, owned by the defendant, exploded as the plaintiff attempted to remove what was purportedly a “dead” cartridge from the device. The defendant had inadvertently jammed a live round in the device two months earlier and had attempted to remove the combustible components before bringing it to the plaintiff and seeking his assistance in removing the jammed cartridge. * * *

… [T]here existed no valid line of reasoning and permissible inferences from which the jury could rationally have found that the defendant’s negligent conduct was not a proximate cause of the plaintiff’s injuries. Piro v Demeglio, 2017 NY Slip Op 03785, 2nd Dept 5-10-17

 

CIVIL PROCEDURE (MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/NEGLIGENCE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)/VERDICT, MOTION TO SET ASIDE (CIVIL PROCEDURE, MOTION TO SET ASIDE THE VERDICT IN THIS PERSONAL INJURY CASE PROPERLY GRANTED, THE JURY FOUND DEFENDANT NEGLIGENT BUT WENT ON TO FIND THE NEGLIGENCE WAS NOT THE PROXIMATE CAUSE OF THE INJURY)

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LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE.

The Second Department determined defendant-attorneys’ motion to dismiss based on documentary evidence was properly denied. Plaintiff alleged the attorneys missed a statute of limitations deadline. The attorneys submitted a letter purporting to terminate the attorney-client relationship with plaintiff prior to the expiration of the statute of limitations. The court found that the letter was not the type of document upon which a motion to dismiss the complaint can be based:

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“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law”… . The evidence submitted in support of such motion must be ” documentary'” or the motion must be denied … . In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” … . “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” … . Prott v Lewin & Baglio, LLP, 2017 NY Slip Op 03786, 2nd Dept 5-10-17

CIVIL PROCEDURE (MOTION TO DISMISS ON DOCUMENTARY EVIDENCE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/ATTORNEYS (LEGAL MALPRACTICE, LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)/LEGAL MALPRACTICE (LETTER TERMINATING ATTORNEY-CLIENT RELATIONSHIP CANNOT BE THE BASIS FOR A MOTION TO DISMISS A LEGAL MALPRACTICE COMPLAINT AS BARRED BY DOCUMENTARY EVIDENCE)

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PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurrence and a two-judge dissent, determined plaintiff state trooper was entitled to attorney’s fees in connection with her successful employment discrimination action against the State under the Equal Access to Justice Act (EAJA):

… [T] he plain language, legislative history and remedial nature of the EAJA together demonstrate that this civil action is eligible for an award of attorneys’ fees. We hold that for cases commenced before the effective date of the 2015 amendment to the Human Rights Law, the EAJA permits the award of attorneys’ fees and costs to a prevailing plaintiff in an action against the State under the Human Rights Law for sex discrimination in employment by a state agency. The plain language of the statute, which is supported by the legislative history, compels the conclusion that “any civil action” encompasses cases brought under the Human Rights Law. It is not for this Court to engraft limitations onto the plain language of the statute. Indeed, “[t]his Court should be very cautious in interpreting statutes based on what it views as a better choice of words when confronted with an explicit choice made by the Legislature” …. . Kimmel v State of New York, 2017 NY Slip Op 03689, CtApp 5-9-17

EMPLOYMENT LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/HUMAN RIGHTS LAW (PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/EQUAL ACCESS TO JUSTICE(PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/ATTORNEYS (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/SEX DISCRIMINATION (EQUAL ACCESS TO JUSTICE ACT, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)/CIVIL PROCEDURE LAW (ATTORNEY’S FEES, PLAINTIFF STATE TROOPER ENTITLED TO ATTORNEY’S FEES AFTER HER SUCCESSFUL SEX DISCRIMINATION ACTION AGAINST THE STATE UNDER THE EQUAL ACCESS TO JUSTICE ACT)

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DEFENDANT IN THIS CONDOMINIUM ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE.

The First Department determined the defendant in this condominium foreclosure action was not entitled to a mandatory mortgage foreclosure settlement conference. The court had ordered settlement conferences in the past and defendant had refused to participate:

The express language of the condominium’s bylaws permitted the appointment of a receiver, without notice, to collect unpaid common charges in this foreclosure action. Further, the record demonstrates that while defendant, an owner of an apartment in the condominium, paid maintenance arrears after plaintiff board filed a notice of lien and commenced the action to foreclose on the lien, she still owed plaintiff for assessments, late fees and associated attorney’s fees. Accordingly, plaintiff was entitled to seek judgment for these fees, which constitute common charges under the bylaws… . We reject defendant’s claim that she was entitled to a mandatory mortgage foreclosure settlement conference, particularly since the court directed the parties to engage in settlement conferences to resolve this matter, and it appears that defendant, for the most part, refused to participate. Board of Mgrs. of St. James’s Tower Condominium v Kutler, 2017 NY Slip Op 03605, 1st Dept 5-4-17

FORECLOSURE (CONDOMINIUMS, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CIVIL PROCEDURE (FORECLOSURE, MANDATORY SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)/CONDOMINIUMS (FORECLOSURE, MANDATORY FORECLOSURE SETTLEMENT CONFERENCE, DEFENDANT IN THIS CONDOMINIUM FORECLOSURE ACTION WAS NOT ENTITLED TO A MANDATORY FORECLOSURE SETTLEMENT CONFERENCE)

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PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM TO THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED.

The Third Department, reversing Supreme Court, determined plaintiff’s motion to conform the pleadings to the proof should have been granted in this medical malpractice action. Defendants submitted proof on the relevant issues (the treatment of plaintiff by defendant Slavin on January 26, 2009) and did not demonstrate amending the pleadings would result in any prejudice to them:

As the parties opposing such amendment, defendants had the burden of establishing that they had been prejudiced, that is that they “ha[d] been hindered in the preparation of [their] case or ha[d] been prevented from taking some measure in support of [their] position” … . That burden cannot be met when the difference between the original pleading and the evidence results from “‘proof admitted at the instance or with the acquiescence of [the opposing] party'”… . * * *

… [A]s defendants acquiesced to the introduction of the evidence of Slavin’s negligence on January 26, 2009, they could not meet their burden when they later opposed plaintiff’s cross motion to conform the pleadings to the proof adduced at trial … . Even if this were not the case, defendants failed to meet their burden of establishing prejudice. Defendants’ contentions that they had been unprepared for cross-examination of plaintiff’s expert was conclusory, as defendants failed to offer a single example as to the manner in which the introduction of evidence that Slavin was negligent on January 26, 2009 hindered their cross-examination. Morever, defendants’ claims that they were prejudiced by the introduction of the January 26, 2009 negligence were unsupported by specific examples or proof in the record. More generally, the record establishes that plaintiffs had plainly notified defendants by their bills of particulars that plaintiff had been treated by Slavin on January 26, 2009 and that Slavin’s negligence included his failure to recognize, from imaging studies, the need to perform a closed reduction on plaintiff’s injured leg. Noble v Slavin, 2017 NY Slip Op 03578, 3rd Dept 5-4-17

CIVIL PROCEDURE (AMEND PLEADINGS TO CONFORM TO THE PROOF, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, MOTION TO CONFORM TO PROOF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/PLEADINGS, AMENDMENT OF (PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/NEGLIGENCE (MEDICAL MALPRACTICE, CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S MOTION TO AMEND THE PLEADINGS TO CONFORM WITH THE PROOF AT TRIAL SHOULD HAVE BEEN GRANTED)

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QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing (modifying) Supreme Court, determined there was a question of fact whether the statute of limitations in this medical malpractice action was tolled by the continuous treatment doctrine:

“Under the continuous treatment doctrine, the 2½ year period does not begin to run until the end of the course of treatment, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint'” … . The doctrine “applies when further treatment is explicitly anticipated by both physician and patient,” which is generally “manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, . . . for the purpose of administering ongoing corrective efforts for the same or a related condition” …  Further “[i]ncluded within the scope of continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” ,,, ,

In the present case, [defendant doctor] testified at his deposition that when he discussed treatment options with the plaintiff, he advised the plaintiff that a new treatment process was available outside the United States and that he was cautiously optimistic that, at some time in the foreseeable future, he could offer it to the plaintiff in New York. The plaintiff, who was aware that the treatment process was the subject of a study aimed at obtaining FDA approval, testified at his deposition that he was waiting for the new treatment process to become available. After being told, in November 2008, that his only options were to wait for the new treatment or seek treatment outside the country, the plaintiff returned to the defendants for treatment of the same condition on March 9, 2011, and, in fact, received treatment for the same condition from the defendants continuing until December 2012. Freely v Donnenfeld, 2017 NY Slip Op 03491, 2nd Dept 5-3-17

NEGLIGENCE (MEDICAL MALPRACTICE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/MEDICAL MALPRACTICE (CONTINUOUS TREATMENT DOCTRINE, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CIVIL PROCEDURE (MEDICAL MALPRACTICE, CONTINUOUS TREATMENT DOCTRINE, STATUTE OF LIMITATIONS,  QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)/CONTINUOUS TREATMENT DOCTRINE (MEDICAL MALPRACTICE, STATUTE OF LIMITATIONS, QUESTION OF FACT WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED)

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