Mendrzycki v Cricchio

[*1] Mendrzycki v Cricchio 2006 NY Slip Op 52595(U) [16 Misc 3d 1102(A)] Decided on August 22, 2006 Supreme Court, Orange County Horowitz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2006
Supreme Court, Orange County

William J, Mendrzycki, as Administrator of the Goods, Chattel and Credits of THERESA M. WARD (Deceased) and WILLIAM J. MENDRZYCKI, individually, Plaintiffs,

against

Frank P. Cricchio, MD, LISA M VALOW-PICARELLO, MD, and FIRST CARE PHYSICIAN ASSOCIATES, PLLC, Defendants.



8704/2004



James C. Freeman, Esq.

Conroy, Verni & Freeman, LLP

Counsel for Plaintiffs

111 Church Street

White Plains, New York 10601

Andrew S. Regenbaum, Esq. Feldman, Kleidman, & Coffey, LLP

Counsel for Defendants

995 Main Street, PO Box A

Fishkill, New York 12524-0395

Lawrence I. Horowitz, J.

Defendants moved for summary judgment, in this medical malpractice case, involving the alleged failure to diagnose the cancer condition that lead to the death of Theresa M. Ward. Each Defendant seeks an Order, from this Court, granting summary judgment, on the grounds that the causes of action for medical malpractice were not commenced within the two years and six months of the last date of treatment by each of the Defendants,

Plaintiff William J. Mendrzycki, as limited administrator of the Estate of Theresa M. Ward, Deceased, was substituted, for the decedent, when leave was granted, by this Court, to amend the complaint to add a cause of action for wrongful death, and to amend the caption, during 2004.

Naturally, Plaintiff opposes the summary judgment motion and cross moved for an order, pursuant to CPLR 3211(b), striking the Defendants' affirmative defense of the medical malpractice statute of limitations (see, CPLR §214-A). Plaintiff maintains that the Defendants' summary judgment motion should be denied in its entirety, because the Defendants waived their right to assert the medical malpractice statute of limitations affirmative defense, by failing to include it in their original answer, or by making a timely motion to dismiss.

This Court previously denied the branch of the Defendants' motion, seeking summary judgment, against the Plaintiff, on the grounds that the cause of action, against First Care Physician Associates, PLLC, for medical malpractice, was not commenced within the two years and six months statute of limitations, calculated from the last date of treatment, because First Care Physician Associates, PLLC, did not exist at the time of the malpractice. The Court also denied the branch of the Plaintiff's cross motion, pursuant to CPLR Rule 3211(b), seeking to strike the defense of statute of limitations, as it relates to First Care Physician Associates, PLLC.

As in the case involving First Care Physician Associates, PLLC, Plaintiff says that he has been severely prejudiced by the Defendants' delay in failing to make the instant motion for more than two years from when the suit was initiated. Alternatively, the Plaintiff argues that his causes of action are timely, because the statute of limitations was tolled by the doctrine of "continuous treatment," and the Defendants have failed to provide sufficient evidentiary proof to support a meritorious defense.

The Two Doctors

Because of the complex record presented here, the Court now turns its attention to the [*2]issue of whether the medical malpractice statute of limitations has expired as regards treatment provided by the Defendant Frank Cricchio, MD and Lisa M. Valow-Picarello.

The essence of the Dr. Cricchio's defense is that he treated the decedent only once, June 8, 2000. Therefore, Dr. Cricchio says that the statute of limitations for medical malpractice was required to be commenced no later than December 8, 2002. According to Dr. Cricchio, there is no doubt that the December 22, 2003, date of commencement of this action was untimely.

Dr. Cricchio says that it is well settled that the "continuous treatment" doctrine does not apply where a plaintiff was unaware of the need for further treatment of a condition and where no course of treatment had otherwise been established during the period (see, Young v. NYC Health & Hospitals Corp., 91 NY2d 291 [1998])

According to this Defendants, Plaintiff claims that Dr. Cricchio was negligent in failing to "timely detect" the decedent's adenocarcinoma of the colon, in the area of the cecum. Plaintiff also claims that this Doctor permitted the cancer to progress by failing to perform specific tests and studies and by failing to refer the decedent to a specialist.

Dr. Cricchio says that after he treated the decedent, in June 2000, no future visits was anticipated, nor was the Decedent's subsequent complaints related to the complaints treated by Cricchio (see generally, Monello V. Sottile, 281 AD2d 463 [2nd Dept. 2001]).

In reply, Plaintiff seems to argue that the "continuous treatment" doctrine applies here because Dr. Cricchio was a part of Defendant First Care Physician Associates' team. Plaintiff says that Cricchio diagnosed the Decedent's problem as "gas, or possibly "irritable bowel syndrome," and noted, in the records, that the Decedent would follow up if her condition recurs.

In further opposition to the Defendants' summary judgment motion, Plaintiff points to the fact that the Defendants waived their affirmative defense of the statute of limitations because the Defendants did not raise that defense in their answer, and did not move to dismiss the cause of action within 30 days of service of the complaint. Plaintiff claims the Defendants waited, until two years after the commencement of the action, to move to assert a statute of limitations defense (see generally, McGown v. Hoffmeister, 15 AD3d 297 [1st Dept. 2005][FN1]).

Plaintiff further maintains that he would be prejudiced if the Court was to permit the Defendants to assert a statute of limitations defense on the eve of trial and after nearly two years of discovery. Plaintiff admits that the Defendants asserted the affirmative defense of statute of limitations, in their amended answer, to the Plaintiff's Amended Complaint, but that was ten months after service of the original complaint. Plaintiff notes that the Defendants did not request leave of the Court to file the amended answer, but the Defendants counter that their answer was in response to the Plaintiff's amended complaint.

Turning to the "continuous treatment doctrine," Plaintiff says that his cause of action tolls the statute of limitations. The elements required to invoke this exception are (1) treatment, (2) continuity thereof, and (3) the treatment is related to the same condition or complaint, i.e., illness continues after the alleged acts of malpractice (see generally, Borgia v New York City, 12 NY2d 151 [1962]).

First. Plaintiff says that because the Decedent received treatment at "First Care," beginning in 1999, there was a continuity of treatment. Second, First Care is the link that joins Dr. Cricchio [*3]and Dr. Valow-Picarello for purposes of continuing treatment. According to the Plaintiff, the visits to First Care were in fact continuous treatment, although by different doctors.

Finally, Plaintiff says that the Decedent initiated this action, within 2½ years of the last treatment. Because the action was commenced on December 22, 2003, the last treatment could have been as late as June 22, 2001.

Plaintiff points to the evidence that the Decedent underwent a pelvic ultrasound, at Orange Radiology, on June 22, 2001, at the direction of Dr. Valow-Picarello. Further, the Plaintiff says that Dr. Valow-Picarello admitted that a nurse practitioner, in the Defendants' practice, reviewed the Decedent's sonogram, on June 27, 2001 (Exhibit D, Tr. Page 61 and 62). Such a date would be within the statute of limitations.

In reply, Defendants say that they are entitled to rely on the statute of limitations, raised for the first time within five days of the receipt of the Plaintiff's amended complaint and within nine months of the original complaint. This is true because leave to amend pleadings should be freely allowed, especially where the Plaintiff has not shown prejudice. Defendants maintain they acted prudently in this regard. Further, Defendants maintain that the Plaintiff has not proven that Defendant First Care Physician Associates, PLLC, is in fact the same group for which Dr. Cricchio performed services.

Legal Discussion

A summary judgment motion must be granted if, upon all the papers and proof submitted, the instant Movants establish that there is no factual dispute, and the Defendants are entitled to a finding in their favor.

However, a summary judgment motion must be denied where a party shows facts sufficient to require a trial of any factual issue (see, Lan Duong v. City University, 150 AD2d 349 [2nd Dept. 1989]). In determining the instant summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party and least favorable to the Movants (see generally, Glennon v. Mayo, 148 AD2d 580 [2nd Dept. 1989]).

Clearly, the Defendants' submission, in support of their motion for summary judgment (if not rebutted by the Plaintiff), must satisfy the prima facie showing required to warrant judgment as a matter of law (see generally, Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]).

Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact that require a trial for resolution (see, Giuffrida v. Citibank Corp., 100 NY2d 72 [2003]).

The questions, on which this Court must now focus, is whether (1) the Defendants timely raised the issue of statute of limitations, and (2) the Defendants were involved in continuous treatment during the 2½ year period, preceding the filing of the summons with notice.

Concerning timeliness, the Court agrees with the Plaintiff that defendants have waived the Statute of Limitations defense. Failure to assert a Statute of Limitations defense in an answer or in a pre-answer motion to dismiss results in a waiver of that defense. CPLR 3211(e); Dougherty v. City of Rye, 63 NY2d 989, 991, 473 NE2d 249, 251-251, 483 NYS2d 999, 1001 (1984); Fade v. Pugliani/Fade, 8 AD3d 612, 614, 779 NYS2d 568, 570 (2nd Dept., 2004). Furthermore, there is no reason to depart from the statute's plain language even though the Statute of Limitations defense was asserted in a pleading made as of right in response to an amended complaint. The Statute of Limitations defense should have been raised in the initial answer to the original [*4]complaint. Simply, defendants' failure to raise this defense in the manner set forth in CPLR 3211(e) constituted a statutory waiver which precluded them from raising that defense in their answer to the amended complaint . See, Ross v. Epstein, 28 AD2d 919, 920, 282 NYS2d 66, 67 (2nd Dep't., 1967). Even if the Statute of Limitations defense was not waived, the Court further finds that on this record, Dr. Valow-Picarello's reliance on the Statute of Limitations defense is not supportable, because the Plaintiff submitted evidence that creates a factual issue concerning whether her treatment of the Decedent was within the 2½ years limitation period.

WHEREFORE, based on the foregoing,[FN2] it is

ORDERED that the branch of the Defendants' motion, seeking summary judgment, against the Plaintiff, on the grounds that the cause of action, against Frank P. Cricchio, MD, for medical malpractice, was not commenced within the two years and six months statute of limitations, calculated from the last date of treatment, is DENIED, and it is further

ORDERED that the branch of the Defendants' motion, seeking summary judgment, against the Plaintiff, on the grounds that the cause of action, against Lisa M. Valow-Picarello, MD, for medical malpractice, was not commenced within the two years and six months statute of limitations, calculated from the last date of treatment, is DENIED, and it is further

ORDERED that the branch of the Plaintiff's cross motion, pursuant to CPLR Rule 3211(b), seeking to strike the defense of statute of limitations, as it relates to Defendant Frank P. Cricchio, MD, for medical malpractice, is GRANTED, and it is further

ORDERED that the branch of the Plaintiff's cross motion, pursuant to CPLR Rule 3211(b), seeking to strike the defense of statute of limitations for medical malpractice, as it relates to Defendant Lisa M. Valow-Picarello, MD, is GRANTED.

The foregoing constitutes the decision and order of this Court.

Dated: GOSHEN, NEW YORK

August 22, 2006

_______________________________Honorable LAWRENCE IVAN HOROWITZ

JUSTICE OF THE SUPREME COURT

James C. Freeman, Esq.

Conroy, Verni & Freeman, LLP

Counsel for Plaintiffs

111 Church Street

White Plains, New York 10601

Andrew S. Regenbaum, Esq.

Feldman, Kleidman, & Coffey, LLP [*5]

Counsel for Defendants

995 Main Street, PO Box A

Fishkill, New York 12524-0395 Footnotes

Footnote 1: The Court notes that McGowan involves the failure to raise the affirmative defense of lack of personal jurisdiction.

Footnote 2: The following papers were read in deciding this motion and cross motion: (1) Notice of Motion, affirmation, Exhibits A to I, (2) Affirmation in Opposition, Exhibits A to Z. (3) Affirmation in Further Support, Exhibits A to C, and (4) Affirmation in Further Support of Plaintiff's Cross Motion.