In this medical malpractice action defendants New York City Health & Hospitals Corporation ("HHC") and Lawrence Jacobson, M.D., move for an order dismissing this action with respect to all allegations regarding Gouverneur Healthcare Service Center ("Gouverneur"), an HHC entity which according to defense counsel was not a full service hospital, but rather an ambulatory care center, and Dr. Lawrence Jacobson, who rendered medical care to plaintiff, Ifejola Arowolo, at Gouverneur, on the ground that he failed to timely serve a notice of claim with respect to such care. HHC also seeks to preclude any testimony pursuant to CPLR §3211(a)(7) regarding claims of malpractice arising out of subsequent treatment rendered to Arowolo at Bellevue Hospital, another HHC entity, after Dr. Jacobson referred him to a corneal specialist there for emergency corneal treatment, on the ground that the complaint allegedly failed to plead claims of malpractice arising out of treatment at Bellevue.

Arowolo's counsel initially opposed the motion in toto, but by letter dated March 22, 2007 effectively withdrew any opposition to the branch of the motion pertaining to the treatment rendered at Bellevue. Accordingly the branch of the motion regarding the treatment at Bellevue is granted and plaintiff is precluded from offering any testimony regarding claims of malpractice arising out of treatment rendered at Bellevue. With respect to the claims against Dr. Jacobson and HHC arising out of the treatment at Gouverneur, Arowolo, relying on the doctrine of imputed continuous treatment, asserts that the treatment subsequently rendered at Bellevue must be imputed to Dr. Jacobson and Gouverneur for purposes of extending the time to serve the notice of claim as to Dr. Jacobson and HHC. Arowolo also cross moved for leave to amend the complaint to allege specific allegations of malpractice against Bellevue. At oral argument Arowolo's counsel represented that he was not seeking to add any claim sounding in lack of informed consent with respect to the treatment rendered at Bellevue. By letter dated March 22, 2007 Arowolo's counsel withdrew his cross motion.

Arowolo, who was born in Nigeria, and was educated in the United States as a pharmacist, returned to Nigeria where in 2002 he was involved in a car accident that resulted in [*2]lacerations to his left upper and lower eyelids which were never repaired there. He then returned to the United States in January 2004. He was employed by Duane Reade in Manhattan from March through October 2004 which provided medical insurance through HIP. Thereafter in November 2004 he became employed by Eckerd's Pharmacy in Staten Island which provided medical insurance through Aetna. See Arowolo 50-h hearing ("H") pp 13-16; But see Bellevue note of 2/25/05 (motion, exh G) suggesting that Arowolo was insured by HIP through at least 2/25/05

In around March 2004 Arowolo sought general medical treatment at Gouverneur's Healthcare Service Center. Arowolo EBT, pp 32-33 His primary care physician there was a Dr. Giniger. H, p 22 The Gouverneur records indicate that Arowolo was "self pay". See motion, exh G, 2/25/05 evaluation form Due to the injury to his eyelids Arowolo at some point complained to Dr. Giniger of a dry eye. In about June 2004 Dr. Giniger wrote a referral for Arowolo to be seen by Gouverneur's Department of Ophthalmology's eye clinic (H, pp 35-37), where he was first seen on June 8, 2004 by a Dr. Naidu, who treated him on that date. On August 10 and September 14, Dr. Naidu prescribed lubricants for the eye, which Arowolo did not use, and on the latter date placed a plug in an effort to keep Arowolo's natural tears in his eye. On September 14, after placing the plug which Dr. Naidu obtained from Dr. Jacobson ^[FN1], the head of Gouverneur's Ophthalmology Department and its medical board (Jacobson EBT, p 37), Dr. Naidu, who according to plaintiff was about to leave Gouverneur and move out of the state, told him that if the plug did not work, she would refer him to Bellevue Hospital for lid revision surgery. H p 43; See also Dr. Naidu's note of 9/14/04 In his affidavit in opposition to this motion (at ¶ 9) Arowolo added that Dr. Naidu told him that Bellevue "was where Gouverneur Hospital eye clinic sent its patients with [his] particular eye problem".

It appears that during the August and September visits, Dr. Naidu spoke to Dr. Jacobson about Arowolo's condition and advised Dr. Jacobson on September 14 that if the plug did not work she would like him to see Arowolo regarding repair of his eyelids, because she did not feel comfortable doing an eyelid repair. Jacobson EBT, pp 36-38 Dr. Jacobson besides working at Gouverneur also had a part-time private practice and was a part-time teacher at NYU. Jacobson EBT, p 6 When asked what type of teaching he did or had done at NYU he responded that he taught residents in the clinics and surgery residents at NYU, Bellevue Hospital, the New York Eye and Ear Infirmary, Manhattan Eye and Ear Infirmary, at VA Medical Center and at Gouverneur. Id 7 Dr. Jacobson also had privileges at all those hospitals in 2004. Id 10 When asked who paid his salary at Gouverneur, defense counsel objected and stated that it was not relevant whether he was "paid by Gouverneur, Bellevue of [sic] NYU", because HHC would be vicariously liable for any of his malpractice. Id 9-10 This representation satisfied plaintiff's counsel, who did not go on to ascertain whether there was any relationship between Dr. Jacobson's job at Gouverneur and his work at Bellevue and/or NYU. Ibid

In response to questioning Dr. Jacobson testified that "sometimes" Gouverneur referred patients to Bellevue for eyelid laceration repairs (Id p 38), but that Dr. Naidu referred the patient to him for evaluation and a possible lid repair. Plaintiff's counsel did not explore at Dr. [*3]Jacobson's deposition under which circumstances patients would be referred to Bellevue for lid revision surgery or the relationship, if any, between Gouverneur and Bellevue. Dr. Naidu last saw Arowolo on September 14, 2004, and he first saw Dr. Jacobson on October 13. According to Arowolo these were the only two ophthalmologists he saw at Gouverneur. H, pp 39-40 Dr. Jacobson testified (EBT, pp 16 - 17) that residents did not see patients at Gouverneur's ophthalmology clinic. On that date Dr. Jacobson told Arowolo that there was no need to refer Arowolo to Bellevue for lid revision but that he could go to Bellevue if he preferred to have surgery there (H, pp 46-48). Dr. Jacobson was experienced in lid repair surgery (Id 47) and proposed to repair the lower lid first to see if that would resolve Arowolo's dry eye, and that if it did not he would later repair the upper lid (Id 54-55).

Dr. Jacobson performed the lower lid surgery on November 12, 2004. The first post-operative visit to Dr. Jacobson was on November 19, and the second was on November 26 at which time Dr. Jacobson noted a "[l]inear abrasion on the cornea where the marginal sutures were". Id 73 At the next visit of December 3 he noted a thinning of Arowolo's cornea and questioned whether that was old versus new. Id 75 Arowolo was to return in 2 weeks. He returned to the eye clinic on Friday December 17 as scheduled complaining that his eye was bothering him, was tearing and that his vision was blurred. See chart entry of 12/17/04 Arowolo testified that he could see nothing from that eye (H, p 54; See also Arowolo EBT, pp 55-56) and that Dr. Jacobson told him he was blind and that his "eye was gone" (Id 55). Dr. Jacobson, who worked at Gouvernuer's eye clinic on Fridays between 1:30 and about 5:00 P.M. (Jacobson EBT, p 101), diagnosed Arowolo with a corneal melt with an iris plugging wound. In other words there was a hole in the cornea and the iris was filling up the hole. Id 78 Dr. Jacobson testified that the abrasion he had previously seen was in a "very similar but slightly different location" than the hole but that the thinning he had seen on December 3 was in "[a]lmost [the] identical" area. Id 80 He further testified that in hindsight there was a progression of the conditions which existed from November 26 to December 3 to December 17. Id 82-83 Dr. Jacobson further testified that he was not sure of the cause of the hole but that the only differential diagnosis he arrived at was that he assumed a suture was rubbing on the cornea. Id 84-85

Dr. Jacobson asserted that prior to December 17 Arowolo made no complaints of feeling a suture rubbing on his eye. Id 84-87 Arowolo disputes this assertion, and maintains that at the first post-operative visit and thereafter he complained of pain which was increasing and that Dr. Jacobson simply prescribed an ointment. H, pp 49-52 However, Dr. Anna Boyman, the corneal specialist to whom Dr. Jacobson referred Arowolo on December 17, testified that Arowolo complained of having had eye pain for only a week. EBT p 31; See also pg 1 of Bellevue record ("on Monday 12/12/04 felt pain")

After examining Arowolo on December 17 Dr. Jacobson informed him that "he had a big problem and he needed to go immediately to Bellevue, that "he could lose his eye", and that "he might need emergency surgery". Jacobson EBT, pp 100-102 Arowolo testified that Dr. Jacobson told him that he better have good insurance and that he would be immediately having surgery at Bellevue, put him in an ambulance and never saw him again. H, pp 53, 55 Dr. Jacobson testified (EBT, p 101) that he may have asked Arowolo if he had medical insurance so that he could refer him to a corneal specialist and that he then attempted to find one "that was [*4]still there" on a Friday afternoon.

Dr. Jacobson called Bellevue, which had a separate corneal clinic, generally on Mondays and had corneal specialists available on other days as well (Boyman EBT, p 126), reached Dr. Boyman, a corneal specialist he knew through NYU (Boyman EBT, p 13), and explained that he had performed a lid repair for a patient with a dry eye due to a laceration, that he had developed a melt, and that he (Dr. Jacobson) wanted Arowolo to be seen that day. Dr. Jacobson left it to the corneal specialist to decide if surgery was needed. Jacobson EBT, p 102; See also Boyman EBT, pp 15-16, 17 He then referred the patient to Bellevue (Id 14), gave him a referral letter (Arowolo EBT, p 57), escorted him to the ground floor to where the ambulance drivers were and told them to take him to Bellevue (Ibid). He also told Dr. Boyman to let him know how things went. Id 103 Dr. Jacobson never called Arowolo after December 17 and never saw him again. Arowolo, who believed that Dr. Jacobson "mess[ed]" up his cornea (H 81), never returned to Gouverneur for eye treatment, stating, in response to the question of whether he ever returned to Gouverneur for eye treatment after December 2004, that he "won't see that man" and that he was "never going back there" (H 87).

After he arrived at Bellevue at about 5:15 P.M., a corneal perforation was diagnosed and urgent (Boyman EBT, pp 40-41) surgery was needed to place a corneal patch which was performed under Dr. Boyman's supervision. Arowolo was advised that day that his cornea had ruptured and that he needed a patch. Arowolo EBT, p 62 He further claims that he overheard the Bellevue doctors say that the rupture was due to "a careless error of the people at Gouverneur, not to have protected the eye". Ibid Dr. Boyman was on NYU's faculty and was an attending at Bellevue. Boyman EBT, p 7 She also had privileges at those two hospitals and at New York Eye and Ear Infirmary, Manhattan Eye and Ear and Queens General. Id p 10 She only worked at Bellevue on Fridays. Id p 21 A few days after the surgery Dr. Boyman called Dr. Jacobson and told him that surgery had been performed and that the patient was doing well. Boyman EBT, p 38 See also Jacobson EBT, p 15 Neither Dr. Jacobson (EBT 15) nor Dr. Boyman could recall there being any specific further conversations with each other regarding the patient (Jacobson EBT, p 151; Boyman EBT, pp 39-40). Dr. Jacobson never saw the Bellevue records. Jacobson EBT, p 13

Arowolo's body rejected the patch, and a subsequent transplant surgery was performed under Dr. Boyman's supervision on January 14, 2005. Boyman at her deposition was asked in detail about the informed consents obtained for both of the surgeries performed at Bellevue. See Boyman EBT, pp 51-52, 95-101

Arowolo continued to be seen at Bellevue's clinic for post-operative care through May 27, 2005, when his corrected vision in his left eye was found to be 20/40, although at one point on February 25, 2005 he called stating that he did not want to come in that day because he was having a problem with his insurance which was good at Gouverneur but required a referral for him to continue to be seen at Bellevue. A note was faxed to his case manager at Gouverneur and to his "PMD" Dr. Giniger to facilitate the referral. In the meantime Arowolo was told to have eye care at Gouveneur's eye clinic to make sure his wound was not leaking. Bellevue's note of February 25 (motion, exh G) indicates that "[h]e was amenable to this agreement". Arowolo did not return to Gouverneur but returned to Bellevue's Corneal Clinic three days later on February 28. [*5]

On June 29, 2005, within 90 days of his last treatment at Bellevue and well within one year and ninety days of his last treatment at Gouverneur by Dr. Jacobson on December 17, 2004, but more than 90 days after that last visit to Gouveneur, Arowolo served his notice of claim alleging negligence on the part of Gouverneur and Bellevue. On October 19, 2005 he filed the summons and complaint which asserted two causes of action, the first alleging departures from accepted standards of medical practice and the second a lack of informed consent. The first cause of action only mentioned treatment rendered at Gouverneur and did not specifically mention Bellevue.

As to the branch of the motion which seeks dismissal of the action as to Dr. Jacobson and HHC for the care rendered at Gouverneur movants assert that the treatment of Arowolo's eye at Gouverneur ended on December 17, 2004 and that therefore the notice of claim served on June 29, 2005 was untimely because it exceeded the applicable 90 day period. Defense counsel maintains that Arowolo had ample time to move for leave to serve a late notice of claim since counting from December 17, 2004 the year and ninety day period in which to so move did not expire until March 2006, which was well after he finished treatment at Bellevue and commenced this action. Defense counsel further asserts that Arowolo will not be able to raise a triable issue as to the applicability of the continuous treatment doctrine. In particular HHC's counsel maintains in the moving affirmation that the policy reason behind the continuous treatment doctrine do not apply because Arowolo lost his faith in Dr. Jacobson and Gouverneur's eye clinic and had no intention of returning there after the day on which Dr. Jacobson referred him to Bellevue. Counsel further asserts that the mere fact that Arowolo was referred to another HHC entity does not mandate the imputation of Arowolo's treatment by those at Bellevue to Dr. Jacobson for the purposes of extending the time to serve a notice of claim, since there is no showing of any agency relationship between those treating Arowolo at Bellevue and those treating him at Gouverneur. Defense counsel further observes that Dr. Jacobson simply referred Arowolo to another provider and that a mere referral does not give rise to the application of the continuous treatment by imputation doctrine. Counsel urges that Dr. Jacobson's testimony at his deposition, when asked if he had stated to Arowolo that he better have good insurance, that he may have asked if Arowolo had medical insurance so that he could refer Arowolo to a corneal specialist and he attempted to find one on a Friday afternoon who was still there, shows that Dr. Jacobson wanted to explore the referral options and that Arowolo could have been referred to a private institution, rather than to a public one. Defense counsel argues that while there has been at least one case where the continuous treatment by imputation doctrine has been applied to two different hospitals, that case involved the plaintiff having established through discovery that one hospital had broad discretion in the operation of the other, a scenario that plaintiff here, despite filing his note of issue before its due date, failed to develop during discovery or establish. Defense counsel further maintains that there is no proof in this case that there was a team approach or joint treatment of Arowolo, and that it would be unfair if patients who used multiple HHC facilities, received different treatment, vis a vis the imputation of treatment for notice of claim or Statute of Limitations purposes, than those who relied on and were referred to private healthcare providers.

Arowolo's counsel, who does not deny in response to the moving affirmation that [*6]Arowolo never intended to go back to Gouverneur's eye clinic or to Dr. Jacobson after December 17, 2004, asserts that because of the common ownership of Gouveneur and Bellevue and because Dr. Jacobson referred Arowolo to Bellevue and put him in an ambulance, the treatment rendered at Bellevue should be imputed to Dr. Jacobson and HHC in connection with the care rendered at Gouverneur's eye clinic. Arowolo, who asserts that he never selected any of the doctors he saw at Gouverneur, adds in his affidavit (at ¶ 9) that he believed Bellevue and Gouverneur worked together "taking care of certain problems on behalf of Gouverneur Hospital". Arowolo's counsel maintains that if one is referred for emergency treatment necessitated by treatment rendered by the referring healthcare provider, to another healthcare provider, whether related or not to the referring healthcare provider, then the treatment by the latter must be imputed to the former for continuous treatment purposes.The burden of establishing the applicability of the continuous treatment doctrine or at least raising an issue as to its applicability is on the plaintiff. Massie v Crawford, 78 NY2d 516, 519; rearg. den 79 NY2d 978 (1991) The continuous treatment doctrine serves to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure". McDermott v Torre, 56 NY2d 399, 405; Nykorchuck v Henriques, 78 NY2d 255, 258 The doctrine is premised on the belief that a patient's best interests are served when there is an ongoing course of treatment rather than a disruption of treatment by a lawsuit because the physician is in the best position to identify and correct any malpractice. Id p 258; Young v NYCH&HC, 91 NY2d 291, 296; Ganess v City of New York, 85 NY2d 733, 735 Underlying the doctrine is the patient's continuing confidence and trust in the healthcare provider. Allende v NYCH&HC, 90 NY2d 333, 339; Plummer v NYCH&HC, 98 NY2d 263, 267 Irrespective of whether the medical provider expects the patient to return, the continuous treatment doctrine generally requires an intent on the part of the patient to return to the healthcare provider. Sarjoo v NYCH&HC, 309 AD2d 34 (1st Dept, 2003) lv to app. den. 1 NY3d 506; See also Young, supra; Allende supra

Turning first to Dr. Jacobson, I find that plaintiff has failed to meet his burden of establishing the applicability of the continuous treatment doctrine as to him. Accordingly, the action is hereby dismissed as to Dr. Jacobson. Here where Arowolo asserts that he was informed of the nature of his injury on the day he last saw Dr. Jacobson, claims in essence that on that day he overheard the doctors at Bellevue attribute the injury to lack of care on the part of Dr. Jacobson, and where Arowolo testified in effect that after December 2004 he would never see Dr. Jacobson because he messed up his eye, the lack of trust and confidence upon which the continuous treatment doctrine is premised is lacking. Allende supra, see Sarjoo, supra Moreover, there was no followup visit scheduled by Dr. Jacobson (See, Plummer, supra at 267-268), and plaintiff does not urge on this motion that he contemplated further treatment by Dr. Jacobson or that Dr. Jacobson was going to treat the rupture which plaintiff alleges was caused by Dr. Jacobson's malpractice. Arowolo does not in his opposing affidavit refute the assertion in the movants' counsel's moving affirmation that Arowolo never intended to return to Dr. Jacobson. It is undisputed that Dr. Arowolo never saw Dr. Jacobson again, and the last that he heard about Arowolo was during a courtesy phone call several days later from Dr. Boyman to let him know how the patient was faring.

Plaintiff's counsel's attempt to have the treatment rendered at Bellevue imputed to Dr. [*7]Jacobson for purposes of extending the time to serve a notice of claim is unavailing. Plaintiff has not established or raised an issue that Dr. Boyman and Dr. Jacobson were jointly treating Arowolo (See Watkins v Fromm, 108 AD2d 233 (2nd Dept, 1985)). Rather, it is undisputed that Dr. Jacobson never even saw the Bellevue chart, and that Drs. Jacobson and Boyman saw the patient seriatum. In addition both Drs. Boyman and Jacobson testified that the appropriate treatment of the injury was left to Dr. Boyman, the subspecialist to whom Dr. Jacobson referred the patient.

There was no continuing relationship between plaintiff and Dr. Jacobson nor has plaintiff demonstrated that Drs. Jacobson and Boyman, or any other healthcare providers at Bellevue, were acting as agents of each other, even assuming arguendo that they were co-employees. See Meath v Mishrick, 68 NY2d 992, 994; Janisch v Howland, 163 AD2d 821(4th Dept, 1990) lv to app. den. 76 NY2d 713 In any event even if Dr. Jacobson and the Bellevue doctors were coemployees that would be insufficient to impute the care rendered at Bellevue to Dr. Jacobson for purposes of extending the time to serve a notice of claim. Ibid; Pierre-Louis v Ching-Yuan, 182 AD2d 55 (2nd Dept, 1992); See also Plummer v NYCH&HC, 285 AD2d 374, Friedman, J. dissenting at 380 (1st Dept, 2001); rvsd 98 NY2d 263 That Dr. Jacobson referred Arowolo to a subspecialist for ongoing treatment does not warrant a different result [See Pierre-Louis supra at 56, 59; See also Ganess supra, Titone J. concurring at p 737; Florio v Cook, 65 AD2d 548 (2nd Dept, 1978), affd 48 NY2d 792; DePeralta v Housepian, 121 AD2d 346 (1st Dept, 1986); Swartz v Karlan, 107 AD2d 801 (2nd Dept, 1985)], even when the physician to whom the patient was referred may well have been employed by the same public employer as the referring physician (See Pierre-Louis supra) and even when the physician to whom the patient was referred was attempting to ameliorate a condition allegedly caused by the referring physician [ See Pierre-Louis, supra; See also DePeralta, supra (referral by private surgeon to private rehabilitation specialist at the hospital for post-operative physical therapy did not permit the latter's treatment to be imputed to the former so as to toll the Statute of Limitations because there were no ongoing corrective efforts by the referring physician, and thus the purposes underlying the continuous treatment doctrine would not be served)]. I further note, that the fact that Dr. Jacobson wrote a written referral should not result in the imputation of the treatment rendered at Bellevue to him where Arowolo appears to have had some type of managed care insurance which required a written referral to receive insurance coverage for the care rendered. Also, that Dr. Jacobson informed Dr. Boyman of his diagnosis does not warrant the imputation of Bellevue's treatment to Dr. Jacobson. See Janisch supra at 822; cf. Coyne v Bersani, 94 AD2d 961, 962 (4th Dept, 1983), aff'd 61 NY2d 939

Obviously the policy underlying the continuous treatment doctrine of keeping the doctor/patient relationship (in this case between Dr. Jacobson and Arowolo) intact until cure in the belief that the most efficacious medical would be obtained (See Nykorchuck, supra), is not served when the doctor, who lacks the expertise to render remedial care, turns the patient's care over to a subspecialist and removes himself from the curative process. Thus there was no impediment to the patient commencing a lawsuit by serving a notice of claim against the referring doctor individually because the suit would not interfere with any ongoing efforts of the referring doctor to identify and correct any malpractice. Borgia v City of New York, 12 NY2d 151, 156; Pierre-Louis at p 59 I find Ganapolskaya v V.I.P. Medical Associates [221 AD2d 59 [*8](1st Dept, 1996)], relied upon by plaintiff to be inapposite since that involved a situation where the patient while virtually right off the operating table was transferred to another medical care provider essentially to properly complete the surgery. In light of all of the foregoing the action is dismissed as to Dr. Jacobson.

This leaves the issue of whether the treatment rendered at Bellevue should be imputed to Gouverneur so as to render the notice of claim timely with respect to HHC for treatment at Gouverneur. The Court of Appeals has not reached the issue of continuous treatment by institution in the case where a plaintiff was treated by different units or clinics of one HHC entity (See Plummer supra at 265; Ganess supra at 736) much less by two clinics of two HHC entities. While the Court of Appeals has held that standing alone the common ownership of two HHC entities is an insufficient nexus for imputing the continuous treatment of one HHC entity to another, it did not foreclose the possibility that under appropriate circumstances continuous treatment could exist between two hospitals with common ownership. See Allende supra at 340 Chief Judge Kaye did note however in her majority opinion in Allende that filing a notice of claim against HHC for the alleged malpractice of a group of doctors at one of its hospitals "would not necessarily affect the care and treatment received at another HHC facility", and that the possibility that the doctor/patient relationship would be destroyed was absent when the sole factor present was HHC's common ownership of the two facilities. In another case Justice Friedman of the Appellate Division (1st Dept) in his dissent rejected the claim that suing an HHC hospital for negligent treatment rendered by one of its physicians at one of its clinics would necessarily disrupt the subsequent treatment rendered by other physicians in its other clinics noting that the patient was treated at the various subsequent clinics for five years after the notice of claim had been served. See Plummer v NYCH&HC, 285 AD2d supra at 379 (Friedman, J., dissenting), rvsd at 98 NY2d 263

That jurist echoed the concerns of former Court of Appeals Judge Titone, who in his concurring opinion in Ganess (supra at 738) observed that a hospital as an impersonal entity was incapable of forming the "intimate one-on-one physician-patient relationship that the continuing treatment doctrine was designed to protect". Judge Titone and Justice Friedman further noted that allowing the continuous treatment toll to apply to those who were treated by various clinics of the same institution would result in unequal treatment between those individuals and those who relied on private providers operating individually or in "small, professionally homogenous groups" (Ganess supra at 738; Plummer supra at 379). Frequently private physicians refer a patient to a specific provider for ongoing treatment without the risk of having the subsequent treater's care imputed to them for the purposes of extending the Statute of Limitations. Judge Titone in his concurring opinion expressed his belief that a referral from one of the hospital's clinics to another for ongoing treatment could not establish the relevant relationship. Ganess supra at 738 He believed that what was necessary for the doctrine to apply was "an unbroken course of treatment by a particular practitioner or closely affiliated group of practitioners". Id at 737 However, ultimately neither in Ganess nor in Plummer once those cases reached the Court of Appeals did the Court need to reach the issue of continuous treatment by institution.

The instant case is somewhat analogous because treatment was provided at another HHC institution as a result of a referral. It differs in that the referrals were not between clinics at one HHC institution but between two HHC eye clinics at separate institutions. Arowolo's counsel [*9]relies on several appellate cases to support his claim that imputed continuous treatment applies. The first, Cotto v City of New York, 99 AD2d 748 (2nd Dept, 1984), is not directly on point because in that case plaintiff adduced evidence in the form of a contract that recited that the second hospital, The Brooklyn Hospital, a private institution, to which the plaintiff was referred by a City hospital "was retained to supervise and provide professional services for medical care at" the City hospital, Cumberland Hospital, and "had broad discretion with regard to the medical staff and operation of intern and residency programs". Id p 749 In addition, the division where plaintiff was admitted pursuant to the referral was "The Brooklyn Hospital at the Brooklyn-Cumberland Medical Center". The court noted that this name suggested the close interrelationship between the two hospitals and that the treatment at the latter should be imputed to the former "because of the close nexus between the two hospitals". Id at p 748 (See also Marabello v City of NY, 99 AD2d 133, 140 (2nd Dept, 1984); app dismd 62 NY2d 942) In the instant case Arowolo placed his case on the calendar a month early without exploring during discovery the relationship between Gouverneur and Bellevue. Cf Meath v Mishrick, 68 NY2d 972, 994-995 Further, while Arowolo has shown that on some occasions patients at Gouverneur had been referred to Bellevue and that a consulting relationship existed (See e.g. Cox v Kingsboro Medical Group, 88 NY2d 904, 907), there was no showing here by him that Bellevue's eye clinic had the type of supervisory role over Gouverneur's eye clinic which Brooklyn Hospital had over Cumberland Hospital.

Arowolo also relies on Marabello v City of New York, 99 AD2d 133 (2nd Dept, 1984), where the court said that while the continuous treatment doctrine may, "where the record evidences sufficient facts for its application", be applied where a patient is successively treated for the same or related conditions at HHC facilities, it did not apply in that case to extend the time to file a notice of claim with respect to the treatment rendered at the first HHC hospital because plaintiff left the care of the first HHC hospital and thereafter began seeing private physicians, who then arranged for plaintiff to be admitted to another HHC hospital, which after surgery referred plaintiff to another HHC facility for rehabilitation. Writing for the majority in Marabello, Justice Boyers in reviewing HHC's legislative history concluded that there was an intent to create an umbrella corporation "to facilitate the development of optimum efficiency and holistic health care by establishing flexibility of operation among the various municipal health facilities under its jurisdiction. Marabello at 140 He further concluded that "by virtue of the single entity' concept" it would be contrary to this legislative intent and the purposes of the continuous treatment doctrine to require a patient who was transferred or referred from one HHC entity to another to serve a notice of claim and interrupt treatment of the same or a related medical condition. Ibid In his concurring opinion, Justice Weinstein rejected the single entity concept but left open the possibility that treatment by two or more municipal institutions could under proper circumstances render the invocation of the continuous treatment doctrine appropriate. Id 145 Justice Weinstein noted that in the case before him there was no contract putting the subsequent entity in a supervising role over the former HHC entity, nor was there any direct referral of the patient from one institution to the other.

Recently the Appellate Division, Second Department, citing the majority opinion in Marabello, held that the continuous treatment doctrine may be applied to toll the time to serve a notice of claim with respect to claims asserted against the initial HHC hospital where the patient [*10]was successively treated for the same or related conditions by a different HHC entity. Thus where a patient was transferred from Bellevue Hospital to Coler Memorial Hospital for rehabilitation therapy a triable issue was raised as to the applicability of the continuous treatment doctrine. See Kropiewnicki v City of New York, 29 AD3d 532 (2nd Dept, 2006)

In the instant case there are factors which militate against the finding of continuous treatment by Gouverneur. Specifically the patient claims that on the day of the referral he overheard the doctors at Bellevue say that carelessness at Gouverneur resulted in his ruptured cornea and plaintiff maintained that he was never going back to Gouverneur and Dr. Jacobson for treatment of his eye because he blamed Dr. Jacobson for what happened. That the doctors at Bellevue would say in Arowolo's earshot that the rupture was due to a careless error by people at Gouverneur in not protecting his eye would suggest that service of a notice of claim on HHC with respect to the treatment rendered at Gouverneur, would not interrupt treatment by those treating him at Bellevue. In addition, Arowolo was not a service patient, but instead was privately insured and maintained that Dr. Jacobson told him in connection with the referral that he better have good insurance. This should have alerted Arowolo to the possibility that irrespective of whether his insurance covered him at Gouverneur, it might not cover him at Bellevue and that therefore the two hospitals should not necessarily be viewed by him as interchangeable. Indeed as noted earlier Arowolo in February 2004 cancelled an appointment because his insurer required a written referral for him to continue to be seen at Bellevue as opposed to Gouverneur.

While Arowolo in his affidavit claims that he thought Gouverneur and Bellevue were working together, this conclusion seems to be predicated on Dr. Naidu's telling him that she would refer him to Bellevue for a lid revision (which in fact did not occur) and Dr. Jacobson's referral of him to Bellevue late in the day on a Friday once he ascertained there was an appropriate specialist there to deal with the rupture which he viewed as an emergency. However a private physician will often refer a patient to a particular consultant or healthcare provider rather than simply telling the patient to see any specialist of a particular type. One might even expect a referral to a particular provider under the circumstances of it being an emergency which occurred immediately before a weekend. A referral to a particular healthcare provider would not ordinarily entitle one to believe that the two healthcare providers were working together. Also, as noted above Arowolo was evidently covered by some type of managed care insurance plan which required referrals, a fact which he presumably knew.

Nonetheless based on the Second Department's recent decision in Kropiewnicki (supra) I am constrained to find that there is an issue of fact as to the applicability of the doctrine of continuous treatment by imputation based on the common ownership of the two entities and the fact of a direct referral by one to the other. Accordingly, HHC's application to dismiss all claims against it arising out of treatment rendered at Gouverneur is denied.

Settle order.

60 Centre Street

New York, NY

J.S.C. [*11]