Neumann v. Nassau County Medical Center

[302] —In an action to recover damages for negligence, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated June 23, 1993, which granted the defendants’ motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and General Municipal Law § 50-e. Ordered that the order is affirmed, with costs. On August 10, 1989, the plaintiff Susanna L. Neumann went to the Nassau County Medical Center following a fall at her home. Following her release on August 18, 1989, she was advised to return for a followup visit on August 25, 1989. When she did, a "CAT scan” was taken of the abdominal portion of her body, including her breasts. A report prepared on the following day stated: "Incidentally noted is a low density within the right breast measuring approximately 1.5 cm which may represent a cyst. Correlation with mammogram is recommended”. No one at the facility ever notified the plaintiff Neumann of that recommendation. On June 20, 1991, during a routine screening mammogram elsewhere, the examining physician noted "nodularity of the right breast” and on October 4, 1991, a biopsy of the breast was conducted, which revealed an intraductal carcinoma. The plaintiffs subsequently served a notice of claim on the defendants on or about January 10, 1992, and commenced this action on or about January 11, 1993. The defendants have maintained throughout that this action is barred owing to a failure to comply with General Municipal Law § 50-e and because the action was not commenced within the one-year 90-day Statute of Limitations in General Municipal Law § 50-i. Passive failure to disclose the existence of a condition warranting further medical treatment is not a continuing wrong (see, Rizk v Cohen, 73 NY2d 98; Phelps v Greco, 177 AD2d 559). Therefore, the cause of action to recover damages accrued in August 1989 and the plaintiffs failed to timely serve a notice of claim pursuant to General Municipal Law § 50-e or timely commence their action within the applicable one-year 90-day limitations period set forth in General Municipal Law § 50-i. Thompson, J. P., O’Brien, Santucci and Joy, JJ., concur.