Orsini v. Postel

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about December 29, 1997, which denied defendant’s motion for summary judgment dismissing the complaint for medical malpractice as time-barred, unanimously affirmed, without costs.

Subsequent to defendant’s decedent doctor’s operation upon plaintiffs decedent to remove a malignant melanoma, plaintiffs decedent, at the doctor’s instruction, returned from time to time over a period of years to the doctor’s office for dermatological examinations during which the doctor routinely checked for a recurrence of melanoma. Since there is a triable issue of fact as to whether these post-operative examinations constituted continuous treatment for melanoma, the recurrence of which the doctor allegedly failed by reason of malpractice to timely diagnose, defendant’s motion to dismiss the complaint as time-barred was properly denied. If the subject post-operative examinations did constitute continuous treatment for melanoma, the applicable statutory period would have been tolled for the duration of the treatment rendering the instant action against the doctor timely (see, Garcia-Alano v Guttman Breast *340Diagnostic Inst., 188 AD2d 262, lv dismissed 81 NY2d 1007). Concur — Mazzarelli, J. P., Rubin, Andrias and Buckley, JJ.