Perez v. Beth Israel Medical Center

Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered April 11, 2001, which, inter alia, denied the cross motion of defendant Bhadra Bharat Shah, M.D. to dismiss Action No. 1 for lack of jurisdiction and Action No. 2 as time barred, unanimously affirmed, without costs. Since defendant was timely served with both the original and the supplemental papers, the action was not dismissed under CPLR 306-b as had occurred in Louden v Rockefeller Ctr. N. (249 AD2d 25), thereby rendering that matter distinguishable. Indeed, here jurisdiction was obtained over defendant in the first action by the service upon her of both the original and the supplemental summons with notice within the requisite 120 days, without prejudice to defendant as a result of the procedure followed by plaintiff (see, Spitzer v Dewar Found., 280 AD2d 385). The motion court also appropriately declined to dismiss the second action as time barred. While a limitations period of 21/2 years is applicable to a claim for medical malpractice (see, CPLR 214-a), which cause of action generally accrues on the date when the alleged malpractice occurred (see, Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295; Nykorchuck v Henriques, 78 NY2d 255, 258), and the surgical malpractice alleged by plaintiff against defendant Shah is said to have occurred on August 9, 1996, plaintiff also alleges that she advised Shah of her persistent discomfort almost immediately after the latter operated upon her and that she sought corrective treatment for her post-operative condition as late as her visit to defendant’s office on December 12, 1996. Under these circumstances, plaintiff is entitled to discovery, including the deposition of Dr. Shah, to substantiate her claim that the complained of course of treatment continued into the applicable 304 statutory period. Concur — Nardelli, J.P., Mazzarelli, Saxe, Sullivan and Ellerin, JJ.