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Petito v Roberts 2012 NY Slip Op 30223(U) January 26, 2012 Sup Ct, Richmond County Docket Number: 101126/08 Judge: Joseph J. Maltese Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND DCM PART 3 ROCCO PETITO and CHRISTINE PETITO Plaintiffs against STEPHEN ROBERTS, MD and JOSEPH MOTTA, MD, PC Defendants

Index No. 101126/08 Motion No.: 5

DECISION & ORDER HON. JOSEPH J. MALTESE

The following items were considered in the review of the following motion for dismissal or summary judgment Papers Notice of Motion and Affidavits Annexed Answering Affidavits Replying Affidavits Exhibits Numbered 1 2 3 Attached to Papers

Upon the foregoing cited papers, the Decision and Order on this Motion for Dismissal and Summary Judgment is as follows: The defendant, Stephen Roberts, MD ("Dr. Roberts") moves for dismissal or summary judgment against the plaintiffs, Rocco Petito and Christine Petito, asserting lack of timeliness and lack of merit. The action brought by the plaintiffs against the defendant Dr. Roberts is dismissed.

Facts

The plaintiff, Mr. Petito, first saw Dr. Roberts for medical care on April 26, 2005. At that time Dr. Roberts was an employee of Prime Care Urgi Center ("Prime Care"), an out-patient medical care provider. Mr. Petito complained of urinary frequency lasting several days and a urine analysis was abnormal. It was presumed Mr. Petito had a urinary tract infection. Mr. Petito was prescribed oral antibiotics at that first visit and advised to return for confirmation of a cure.

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Over subsequent weeks and visits, the urine analysis failed to revert to normal and Mr. Petito was prescribed further antibiotics. May 17, 2005, Dr. Roberts referred Mr. Petito to a urologist, Dr. David J. Lehr. Dr. Roberts never saw Mr. Petito again.

Dr. Lehr ordered a computerized tomography scan ("CT") scan and forwarded his written consultation to a different doctor who shared Dr. Roberts' last name. The CT scan showed a questionable lesion in the rectum and Dr. Lehr again forwarded the results to the wrong physician. Dr. Lehr advised that Mr. Petito return to the defendant for further care with regard to the CT scan. Dr. Lehr saw Mr. Petito again on June 20, 2005. However, Mr. Petito elected not to see Dr. Lehr again on the next scheduled visit.

Dr. Roberts ceased his employ with the Prime Care in September 2006. Mr. Petito asserts that he attempted to contact Dr. Roberts several times in order to obtain the results of his urologic visit within the week after the CT Scan. Mr. Petito states he was never told the results of his urologic consultation. On April 30, 2007, Mr. Petito returned to Prime Care complaining of testicular pain. He was seen at Prime Care by Jeffrey Tambor, MD, whom he saw on May 10, May 21, and June 25 of 2007. On October 7, 2007, Mr. Petito saw Dr. Tambor for frequent, loose bowel movements. He returned on October 11, 2007 and was referred to a gastroenterologist. Ultimately, Mr. Petito was diagnosed as having metastatic colon carcinoma. The plaintiffs assert that the cancer was originally seen on the CT scan performed in 2005.

A verified complaint was filed against Dr. Roberts on March 14, 2008. Issue was joined by service of a verified answer on June 12, 2008. An amended verified answer was later served on June 17, 2008. In both the answer and verified answer an affirmative defense was raised invoking the statute of limitations. Dr. Roberts' motion for dismissal or summary judgment was filed on August 26, 2011.

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Discussion

This is an action based upon alleged malpractice in failing to timely diagnose colon cancer. The statute of limitations for medical malpractice actions in adults that is not based upon a foreign body is two years and six months from the date of the last treatment within a course of continuous treatment for the same illness or condition giving rise to the malpractice.1 The time tolls from the last treatment of a "continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure."2 A motion to dismiss may be based on the statute of limitations.3 To preserve this affirmative defense, it must be brought forth within the defendant's answer.4 Here, an affirmative defense invoking the statute of limitations was stated within both Dr. Roberts' answer and his amended answer. Therefore, Dr. Roberts may assert this defense against an untimely summons and complaint in this action.

The doctrine of relation back is not germane to this action. "As codified in New York's Civil Practice Law and Rules, what is commonly referred to as the relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are `united in interest'," and where the new party knew or should have known that he was not identified as a defendant by mistake.5 The criteria to apply the doctrine of relation back are completely incongruent to the specifics of this action. In the instant action there is no claim previously asserted against a different codefendant united in interest to Dr. Roberts, but not originally asserted against Dr. Roberts. Moreover, the ex-employee Dr. Roberts cannot be said to

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