JEANNE MCMANUS, ETC., plf-res, v. MARK S. LIPTON, M.D. def-ap

10067. JEANNE MCMANUS, ETC., plf-res, v. MARK S. LIPTON, M.D. def-ap — Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for ap — David L. Taback, P.C., New York (Jennifer A. Fleming of counsel), for res Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 15, 2012, which denied defendants' motions to dismiss as time-barred any medical malpractice claims arising from care rendered before December 6, 2004, and for summary judgment dismissing any surviving claims, unanimously modified, on the law, to grant the motion to dismiss plaintiff's medical malpractice claims, and otherwise affirmed, without costs.

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10067. JEANNE MCMANUS, ETC., plf-res, v. MARK S. LIPTON, M.D. def-ap — Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for ap — David L. Taback, P.C., New York (Jennifer A. Fleming of counsel), for res Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 15, 2012, which denied defendants’ motions to dismiss as time-barred any medical malpractice claims arising from care rendered before December 6, 2004, and for summary judgment dismissing any surviving claims, unanimously modified, on the law, to grant the motion to dismiss plaintiff’s medical malpractice claims, and otherwise affirmed, without costs.

Plaintiff commenced this action on June 6, 2007, alleging that defendant Lipton departed from accepted medical practice by failing to order a diagnostic CT scan and a pulmonological work-up when plaintiff’s decedent presented to NYU Medical Center in September 2004 with symptoms of shortness of breath and edema, inter alia. The 2-year statute of limitations on medical malpractice claims was not tolled by the continuous treatment doctrine for the period before December 6, 2004, because defendant’s treatment of the decedent before that date was not for “the same, illness, injury or condition” that gave rise to this action (CPLR 214-a; see Young v. New York City Health & Hosps. Corp., 91 NY2d 291 [1998]; Chestnut v. Bobb—McKoy, 94 AD3d 659, 661 [1st Dept 2012]). The decedent presented with myriad symptoms, including chest tightness after walking uphill, anemia, tooth complaints, heartburn, and gastrointestinal complaints; he did not present with symptoms typical of pulmonological problems, such as coughing or wheezing, his chest was clear on x-ray, and the tightness in his chest was consistent with his cardiac history.

JEANNE MCMANUS, ETC., plf-res, v. MARK S. LIPTON, M.D. def-ap

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