Jaffee v. New York Hospital

—Order, Supreme Court, New York County (Kristin Booth Glen, J.), entered on or about December 14, 1992, insofar as it granted defendant’s motion to dismiss as time-barred any claims of malpractice occurring prior to May 28, 1981, unanimously affirmed, without costs.

Since the complaint was served more than 10 years after the alleged misdiagnosis on May 25, 1980, as well as more than 10 years after the return visits in 1980, all claims relating to those visits were properly dismissed as time barred (CPLR 208), even if those visits constituted, as plaintiff contends, "distinct” acts of malpractice. In any event, the record *277indicates that the 1980 return visits were for continuous treatment of the original diagnosis of H. influenza meningitis and septic arthritis; as the IAS Court noted, "[b]ased on Daniel J. v New York City Health & Hospitals Corp., 77 NY2d 630 (1991) the infant toll (CPLR 208) and the continuous treatment toll (CPLR 214-a) do not run consecutively”. Concur —Rosenberger, J. P., Asch, Rubin, Williams and Tom, JJ.