Lewis v. Rutkovsky , 153 A.D.3d 450 ( 2017 )

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered on or about April 21, 2015, which denied defendants’ motions for summary judgment as untimely, affirmed, without costs. Appeals from order, same court and Justice, entered April 18, 2016, which, upon effectively granting defendants’ motions for reargument, adhered to the prior order, dismissed, without costs, as academic.

In this medical malpractice action, plaintiff claimed to have suffered injuries as a result of negligent care she received from defendant Frederick D. Rutkovsky, M.D., plaintiff’s primary care physician, and, vicariously, from defendant LHHN Medical P.C.¹ Specifically, plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat a meningioma (that is, a benign brain tumor) from on or about April 3, 1998 until September 5, 2007. In support of her allegations, plaintiff asserted that Dr. Rutkovsky “ignored” her repeated complaints of migraine headaches, blurred vision, and other related symptoms. Plaintiff ultimately underwent a left frontal parasagittal craniotomy and suffered a loss of vision rendering her legally blind. By complaint dated March 5, 2010, plaintiff commenced this action against LHHN Medical, P.C., and Lenox Hill Community Medical Group, P.C. (together LHHN) and Dr. Rutkovsky, alleging medical malpractice and lack of informed consent.

By order to show cause filed with the County Clerk’s office on January 23, 2015 and dated January 28, 2015, LHHN moved for summary judgment. On the motion, LHHN asserted that plaintiffs malpractice claims were time-barred, as she had commenced the action on March 5, 2010, more than two and one-half years after her last appointment with Dr. Rutkovsky at LHHN on September 5, 2007. LHHN further contended, preemptively, that plaintiff’s care did not fall within the continuous treatment exception to the statute of limitations because she was not involved in a continuous course of treatment related to her headaches. Dr. Rutkovsky moved separately for summary judgment, filing his order to show cause on January 26, 2015. Like LHHN, Dr. Rutkovsky asserted that plaintiff’s claims for treatment before September 5, 2007 were time-barred. Dr. Rutkovsky also asserted that plaintiff’s informed consent claim should be dismissed, since plaintiff’s allegations did not involve an invasive diagnostic procedure.

In opposition, plaintiff asserted that defendants’ motions could not be entertained because they were untimely. Plaintiff noted that the court’s part rules, as set forth in the Preliminary Conference Order, stated that “[m]otions for Summary Judgment and/or other dispositive motions shall be made no later than 60 (sixty) days from the filing of the Note of Issue, unless the Court directs otherwise.”² Therefore, plaintiff concluded, because the note of issue was filed on November 25, 2014, all dispositive motions were to be made no later than January 26, 2015.

Plaintiff also opposed defendants’ motions on the merits, opining by way of expert affidavits that defendants’ actions had constituted deviations from the applicable standard of care. With respect to the statute of limitations, plaintiff argued that her visits from March 1999, when she first complained of headaches to Dr. Rutkovsky, to February 5, 2007, fell under the “continuous treatment” doctrine, and thus, that the doctrine should apply to toll the statute of limitations.

Dr. Rutkovsky and LHHN argued that their motions were timely because, among other things, on the day they filed their OSCs, court closed early because of Winter Storm Juno, a major storm, and was also closed the following day. The court closings, they argued, led to the delay in obtaining the court’s signature on the orders. Nonetheless, defendants argued that they timely filed their OSCs with the court in good faith and within the 60-day time limit, and that the inclement weather contributed to the delay in obtaining the court’s signature on the order.

Basing its decision on its part rules requiring that post note of issue dispositive motions must be made no later than 60 days after the filing of the note of issue, the court found defendants’ motions for summary judgment to be untimely. The court rejected defendants’ argument that the court’s setting of a service and return date constituted approval of the late motion. Rather, the court found the motions to be untimely, as neither party made its motion for summary judgment by January 26, 2015, and, according to the court, neither movant addressed the issue of good cause, which the court could not consider sua sponte. The court accordingly denied defendants’ motions without addressing the merits.

To begin, as a procedural matter, we may properly consider defendants’ appeal from the order denying their motion to reargue. In general, an order denying a motion for reargument is not appealable (see e.g. Kitchen v Crotona Park W. Hous. Dev. Fund Corp., 145 AD3d 521 [1st Dept 2016]). Here, however, although the motion court purported to deny the motion to reargue, it nonetheless considered the merits of defendants’ argument that the inclement weather on the motion’s due date provided good cause for the delay. As a result, the court, in effect, granted reargument, then adhered to the original decision (see Matter of 1234 Broadway, LLC v New York State Div. of Hous. & Community Renewal, 102 AD3d 628, 629 [1st Dept 2013]). The April 18, 2016 order is therefore appealable (id.).

Turning now to the merits of this appeal, we find that the motion court improvidently exercised its discretion in finding that the motions were untimely and declining to consider them on that basis. Under CPLR 3212 (a), a motion for summary judgment must be made within 120 days of the filing of the note of issue. So long as it is within that time period, the court may set forth its own deadline, in which case the court’s directive controls (see McFadden v 530 Fifth Ave. RPS III Assoc., LP, 28 AD3d 202, 202-203 [1st Dept 2006]). Accordingly, when a motion for summary judgment is untimely, the movant must show good cause for the delay; otherwise the late motion will not be addressed (see Andron v City of New York, 117 AD3d 526 [1st Dept 2014]). Further, a court has broad discretion in determining whether the moving party has established good cause for the delay, and its determination will not be overturned unless it is improvident (see Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]).

Dr. Rutkovsky filed his OSC with the clerk’s office on January 26, 2015; the court signed it on January 29, 2015 and Dr. Rutkovsky served it on January 30, 2015. Likewise, LHHN filed its OSC on January 23, 2015; the court signed it on January 28, 2015 and LHHN served it on February 2, 2015. No party disputes that, on the day the orders would usually have been processed and timely signed, inclement weather from Winter Storm Juno created a “state of emergency” and caused the early closure of the courts; indeed, because of the storm, the Governor signed an executive order suspending legal deadlines.

Indeed, even if we were to find that the orders were untimely, the weather conditions and resulting court closing provides “good cause” for the de minimis delay. Under these circumstances, the motion court should have considered defendants’ motions for summary judgment on the merits (see e.g. Butt v Bovis Lend Lease LMB, Inc., 47 AD3d 338, 339-340 [1st Dept 2007]; see also Pippo v City of New York, 43 AD3d 303 [1st Dept 2007]).

Turning to the merits of defendants’ motions, the record presents issues of fact as to continuous treatment. As is well established, “the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996] [internal quotation marks omitted]). In addition, “[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (Wilson v Southampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013] [internal quotation marks omitted]).

Here, read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007 there was continuity of treatment for symptoms — namely, recurring and sometimes severe headaches — that were traceable to plaintiff’s meningioma (see id. at 500-501). If so, the course of treatment would render plaintiff’s action timely, as the statute of limitations would be tolled between March 1999 and September 2007.

Our decision in Wilson is instructive. In Wilson, the decedent received treatment at a walk-in clinic on 11 occasions between September 1, 2003 and July 21, 2005. At those visits, the decedent complained of headaches; she was eventually diagnosed with metastasized lung cancer. During his deposition, one of the defendants conceded that a brain tumor from metastasized lung cancer would, in fact, cause headaches, and he testified that on that basis, he had recommended an MRI and neurological consult {id. at 500). Under those circumstances, we affirmed the denial of the defendants’ motion for summary judgment, finding that there existed a triable question of fact as to whether the decedent’s visits to the defendants for the applicable period were part of continuous treatments for headaches that were traceable to the lung cancer that killed her.

The same reasoning applies here. Given the fact that plaintiff complained of headaches or vision difficulties, or both, on at least six occasions between March 1999 and September 2007, the record presents an issue of fact as to whether, before September 5, 2007, defendants were consistently monitoring plaintiff for specific symptoms related to the meningioma. In fact, if anything, the symptoms in Wilson were more attenuated from the ultimate diagnosis than the symptoms in this case.

Our dissenting colleague insists that the continuous treatment doctrine cannot apply, asserting that there was no evidence of regular appointments or ongoing treatment for plaintiff’s headache-related complaints. Putting aside the fact that the assertion mischaracterizes the record — in fact, plaintiff testified that once per month from January 2007 until June 2007 she complained of “extreme” headaches that were not helped by over-the-counter medication — it is a red herring, as it has no bearing on whether the record contains evidence that the continuous treatment doctrine may apply. On the contrary, the case law contains no requirement that a plaintiff have attended “regular” appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly diagnosed — here, a meningioma that gave rise to plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky undertook to treat by, among other things, prescribing reading glasses (see Wilson, 112 AD3d at 500; see also Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014] [“(i)n determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment”], citing Rizk v Cohen, 73 NY2d 98, 104 [1989]; Simons v Bassett Health Care, 73 AD3d 1252, 1254 [3d Dept 2010]).

The dissent attempts to dismiss the record testimony of once-monthly visits over a six-month period by asserting that plaintiff gave “self-serving” deposition testimony about those visits. There is nothing “self-serving,” in a legal sense, about deposition testimony that favors the party giving it. Rather, testimony is said to be self-serving when it contradicts prior testimony — a situation that does not exist here (see e.g. Capuano v Tishman Constr. Corp., 98 AD3d 848, 851 [1st Dept 2012] [an affidavit that does not contradict one’s prior deposition testimony and “provides additional details illuminating” the prior testimony is not considered self-serving]). Whether the testimony is “self-serving” in the sense that it is incredible on its face, and therefore creates no material issue of fact, is an issue for the factfinder to resolve.

Likewise, contrary to the dissent’s characterization, plaintiff’s deposition testimony does not amount to mere “[cjonclu-sory allegations” in any sense that that phrase is used to defeat a motion for summary judgment. Plaintiff’s deposition testimony was factual, simply reflecting her recollections of how often she visited Dr. Rutkovsky during a certain time period and what she recalled telling him at those times. Applying the word “conclusory” to such testimony is not meaningful in this context; plaintiff was not making a legal conclusion about continuing treatment, but merely testifying to her recollection of events (cf. McGahee v Kennedy, 48 NY2d 832, 834 [1979] [summary judgment not defeated by the defendant’s conclusory statements that he was coerced to sign amendment to separation agreement]). Whether this testimony is credible is a matter to be evaluated by the factfinder, not by the court on summary disposition.

In a similar vein, the dissent insists that “plaintiff does not connect these purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.” We disagree with this statement because, as noted above, plaintiff did, in fact, testify that she told Dr. Rutkovsky about her headaches during these once-monthly visits. Specifically, she testified that she was “at his office [once a month] telling him about . . . headaches [that] were getting more and more extreme” such that she could not get out of bed, and were not alleviated by Ibuprofen. This testimony, read in the light most favorable to plaintiff, is quite sufficient to raise an issue of fact, which is all that the law requires at this stage (see e.g. Chestnut v Bobb-McKoy, 94 AD3d 659, 662 [1st Dept 2012]).

We note that plaintiff does not address defendants’ arguments regarding the cause of action for informed consent, and specifically notes in her papers that she does not intend to pursue that claim. At any rate, the informed consent claim lacks merit. As we have held, “[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that ‘involve [s] invasion or disruption of the integrity of the body’ ” (Janeczko v Russell, 46 AD3d 324, 325 [1st Dept 2007], quoting Public Health Law § 2805-d [2] [b]).

Finally, we specifically decline to reach the issue of whether a departure from the applicable standard of care was a cause of plaintiff’s brain surgery or vision loss, because the trial court never considered that issue. Thus, we need not address the dissent’s discussion of causation. We find only that the record presents issues of fact about the continuous treatment doctrine for the trial judge to evaluate.

In light of our decision, we need not consider the parties’ remaining arguments.

Concur — Moskowitz, Gische and Kap-nick, JJ.

1 . LHHN Medical P.C., doing business as Manhattan’s Physician Group and formerly known as Lenox Hill Community Medical Group, is sued in this action as Lenox Hill Community Medical Group, P.C.

2 . The phrase “by order to show cause” was inserted by hand in the PC order, so that the paragraph read, “Motions for Summary Judgment and/or other dispositive motions shall be made by order to show cause no later than 60 (sixty) days from the filing of the Note of Issue, unless the Court directs otherwise” (emphasis added).