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Korcz v. Merritt11/30/2005
andard of care.
In light of the foregoing, and in accordance with the Fourth Department's decisions in Green and Bonanza, the court finds that plaintiffs have failed to raise a triable issue of fact on the question of whether there was continuous treatment which would toll the period of limitations for any acts of alleged malpractice prior to April 8, 2000. There simply is no evidence in this record that establishes that at the consultations identified by Dr. Elwell, the plaintiff and defendant scheduled or contemplated return visits as part of an ongoing and continuous course of treatment which would toll the accrual of this cause of action.
In light of the foregoing, defendant's motion for summary judgment based upon the failure to commence this action within two years and six months of the accrual of the cause of action is granted. Plaintiffs have failed to establish entitlement to the application of the continuous treatment doctrine or to raise a question of fact sufficient to defeat summary judgment in favor of defendant on that issue. This constitutes the decision of the court. Defendant's counsel to submit proposed order on notice.
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