The instant medical malpractice action involves allegations that defendants failed to timely diagnose plaintiffs' decedent, Stanislaw Czajka's, lung cancer. Stanislaw Czajka presented to the emergency room at Bellevue Hospital, a facility owned by defendant New York City Health and Hospitals Corporation ("NYCHHC") on October 31, 2003, with complaints of shortness of breath and chest pain. Decedent was evaluated and a chest x-ray was performed. Decedent was diagnosed as having complex multi-vessel artery disease and the chest x-ray revealed that he suffered from chronic obstructive pulmonary disease, a pulmonary condition associated with cigarette smoking and commonly referred to as emphysema. Based upon the aforementioned diagnoses, a coronary bypass surgery was scheduled to be performed on November 10, 2003.

A chest x-ray was performed on November 9, 2003. In a radiologist report relating to this x-ray, which was dated November 11, 2003, Dr. Richard D. Kittredge noted that there was a nodular density at the base of decedent's right lung. Dr. Kittredge stated that a follow up film was warranted based upon this finding. Decedent's coronary bypass surgery was performed by Dr. Charles Schwartz on November 10, 2003. Decedent was hospitalized following the surgery through November 15, 2003. During this admission three (3) additional chest x-rays were performed. A chest x-ray of November 11, 2003 also revealed the nodular density at the base of decedent's right lung noted on the previous x-ray. As a result of this finding, Dr. Kittredge recommended that a chest CAT Scan be performed when "clinically feasible." In his report relating to a chest x-ray performed on November 12, 2003, Dr. Kittredge noted that the density in decedent's right lung was still present but was "less well-defined." Dr. Kittredge ordered a further follow-up film. A further follow-up chest x-ray was performed on November 14, 2003, which was reviewed by Dr. P Jane Ko, and, again, revealed the nodule present in the prior x-rays. Dr. Ko set forth in her report that decedent had a "2.5 cm nodular opacity right lower lobe" [*2]and stated that "[f]urther evaluation is recommended with chest CT."

Following his discharge on November 15, 2003 through the time he was ultimately diagnosed with lung cancer, decedent's treatment at Bellevue was as follows:

On November 28, 2003, decedent visited the chest surgery clinic, presumably for a follow-up visit relating to his coronary bypass surgery of November 11, 2003. In the records relating to this visit, decedent is labeled as a new patient. In all following records he is referred to as an established patient.

On December 10, 2003, decedent visited the cardiac clinic, where he was treated by Dr. Loran Yehudai. Dr. Yehudai notes that decedent's chart has not been sent for review. The records relating to this visit reflect that although the decedent was doing well at the time, he would get tired and experience shortness of breath "after walking 2-3 [blocks]." The records further reflect that decedent was scheduled to have a return visit to the cardiac clinic in three months.

On December 19, 2003, decedent again visited the chest surgery clinic.

On March 3, 2004, decedent followed up with the cardiac clinic, where he was again treated by Dr. Yehudai. The medical records relating to this visit reflect that decedent had "trouble at SVG graft scar," and noted "sensation of no feeling over left chest." Dr. Yehudai further noted in the medical records that decedent would experience mild shortness of breath "after walking a long time." Decedent was instructed to return for a follow-up visit to the cardiac clinic in four months.

On July 6, 2004, decedent again followed up with Dr. Yehudai at the cardiac clinic. Although the medical records reflect that the decedent was feeling good at the time of this visit, Dr. Yehudai noted in the records that decedent would occasionally experience shortness of breath on exertion, when walking longer and faster. The records further reflect that decedent was instructed to return to the cardiac clinic in six months.

On February 3, 2005, decedent appeared at the medicine clinic at Bellevue where he treated with Dr. Lydia Kang. Decedent had complaints of pain and swelling in his left leg that had been present for approximately two to three months. It was noted that decedent was having some trouble walking as a result. The records relating to this visit reflect that decedent was still experiencing "sob [shortness of breath] in the morning, when walking a long time, 30 minutes of walking" and that he "[g]ets a dry cough." Dyspnea, which is a medical term for shortness of breath, is listed as one of decedent's problems, in the records for February 3, 2005. The records also reflect that a respiratory exam performed during this visit revealed right base "crackles." [*3]

It appears that a chest x-ray was ordered by Dr. Kang and was performed on February 3, 2005. Radiologist, Dr. Joshua Becker, noted that this x-ray showed that decedent had "a consolidation in the right lower lobe." Dr. Becker concluded that decedent had right lower lobe pneumonia. However, immediately following this finding, decedent was recalled to the medicine clinic for a follow up chest x-ray. In the records relating to the call placed to decedent to instruct him to return to Bellevue for a follow-up, it is again noted that decedent has crackles at the right base of the lungs and chronic shortness of breath.

The records further indicate that Dr. Zhadnova reviewed the chest x-ray of February 3, 2005, as well as the chest x-ray performed on November 14, 2003, which revealed right lower lobe opacicity suggestive of a pulmonary nodule. Dr. Zhadnova found no clinical evidence of pneumonia, however, the possible pulmonary nodule on the November 14, 2003 chest x-ray coupled with present right lower lobe consolidation raised the concern of an endobronchial lesion. Dr. Zhadnova ordered that a chest CAT Scan be performed.

It is not clear from the medical records on what date decedent was advised that he had lung cancer. Dr. Marilyn Kline, who treated decedent on February 15, 2005 and on dates thereafter, testified at her deposition that it is likely that she informed him of his condition on his visit of March 1, 2005. However, Dr. Kline testified that possibly she waited until the following visit of March 8, 2005; if she determined that the cancer was metastatic, she could inform him of the cancer stage. According to Dr. Kline's testimony, she advised the family on March 8, 2005 that decedent had stage four (4) lung cancer, and his chance of survival was limited. Following the visit of March 8, 2005, it appears that decedent sought little to no treatment at Bellevue. Decedent died on May 24, 2005.

Plaintiffs filed their notice of claim on or about June 1, 2005. The notice of claim listed Mr. Czajka and his wife Wanda as claimants and set forth that the nature of the claim was for, inter alia, medical malpractice, lack of informed consent and loss of services. The notice of claim set forth that plaintiff presented to Bellevue "in or about November of 2003" with chest pain and treated at the facility in connection with his chest pain until "January or February of 2005." The gist of plaintiffs' claim, as stated in the notice of claim, is that defendants failed to diagnose Mr. Czajka's lung cancer, and as a result he and his wife have sustained damages.^[FN3] On November 2, 2005, NYCHHC conducted the examination of Agnes Kantorowska and Wanda Czajka pursuant to Gen. Mun. L. §50-h. Thereafter, plaintiffs commenced the instant action with the filing of a summons and complaint on or about February 2, 2006. The complaint contained causes of action for medical malpractice, lack of informed consent, hospital liability and wrongful death. Defendant NYCHHC joined issue with the service of its answer on or about March 27, 2006. Defendants Drs. Schwartz and Yehudai joined issue with service of their answer on or about March 29, 2006. Discovery was conducted in connection with this action, and on or about March 29, 2007 plaintiffs filed their note of issue and certificate of readiness, certifying that discovery had been completed.

Defendants presently move for an order: (1) dismissing the medical malpractice, lack of

Failure To Serve A Timely Notice of Claim

Defendants presently move to dismiss the medical malpractice, lack of informed consent, and hospital liability causes of action on the ground that plaintiffs failed to serve a timely notice of claim.^[FN4] It is argued that any alleged failure to diagnose decedent's lung cancer occurred more than 90 days prior to the filing of plaintiffs' notice of claim, and, thus, the notice of claim is untimely, under General Municipal Law § 50-e. According to defendants, any alleged failure to diagnose decedent's lung cancer took place before February 14, 2005, which they claim is the date of the diagnosis, and, therefore, plaintiffs' notice of claim, which was filed on or about June 1, 2005, was untimely with respect to such claims.

In opposition, plaintiffs contend that the notice of claim, filed on or about June 1, 2005, is timely because decedent received continuous treatment beginning with his initial visit to the emergency room at Bellevue on October 31, 2003 through the date of his last treatment, which appears to have occurred on or about March 8, 2005. Plaintiffs argue that because decedent received frequent and continuous treatment at Bellevue during this period for shortness of breath, which plaintiffs contend was a symptom of decedent's lung cancer, the 90-day period within which a notice of claim must be filed, under General Municipal Law § 50-e, was tolled until after decedent's final treatment at Bellevue relating to his lung cancer.

CPLR §214-a sets forth, in pertinent part, "[a]n action for medical ... malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." Generally, a medical malpractice action accrues on the date of the alleged wrongful act. See Plummer v. New York City Health and Hospitals Corporation, 98 NY2d 263 [2002], citing Nykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]. However, where there is a continuous course of treatment for the conditions giving rise to this malpractice action, the running of the applicable statutory period is tolled during the period of continuous treatment (see Young v New York City Health & Hosps. Corp., 91 NY2d 291 [1998]; Langsam v. Terraciano, 22 AD3d 414 [1st Dept. 2005]. Additionally, the doctrine of continuous treatment will also toll the 90-day period within which a notice of claim must [*6]be filed under General Municipal Law § 50-e. See Plummer v. New York City Health and Hospitals Corporation, supra, citing Davis v City of New York, 38 NY2d 257, 259 [1975]; Borgia v. City of New York, 12 NY2d 151 [1962]; see also Young v New York City Health & Hosps. Corp., supra.

The policy reasoning underlying the continuous treatment doctrine is that "a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuous trust in the physician - patient relationship in order to ensure the timeliness of a medical malpractice action." See Young v New York City Health & Hosps. Corp., supra. However, "[a] patients continuing general relationship with a physician, or routine, periodic health examinations will not satisfy the doctrine's requirement of continuous treatment' of the condition upon which the allegations of medical malpractice are predicated" Id., citing Massie v. Crawford, 78 NY2d 516 [1991]; McDermott v. Torre, 56 NY2d 399 [1982]; see also Plummer v. New York City Health and Hospitals Corporation, supra ["[r]outine examinations of a seemingly healthy patient, or visits concerning matters unrelated to the condition at issue giving rise to the claim, are insufficient to invoke the benefit of the doctrine"]. "Essential to the application of the continuous treatment doctrine is a course of treatment established with respect to the condition that gives rise to the lawsuit'." Plummer v. New York City Health and Hospitals Corporation, supra, quoting Nykorchuck v Henriques, supra.

With respect to failure to diagnose cases, courts have held that a "failure to make the correct diagnosis as to the underlying condition while continuing to treat the symptoms does not mean, for purposes of continuity, that there has been no treatment." Hein v. Cornwall Hospital, 302 AD2d 170 [1st Dept. 2003], citing Marun v. Coleburn, 291 AD2d 340 [1st Dept. 2002]; Dellert v. Kramer, 280 AD2d 438 [1st Dept. 2001]; Bonanza v. Raj, 280 AD2d 948 [4th Dept. 2001]; Green v. Varnum, 273 AD2d 906 [4th Dept. 2000]. Merely because a physician does not diagnose a patient's condition is not a basis to find that the physician was not treating the patient for that condition, if the patients symptoms were such as to indicate its existence and the physician nevertheless failed to properly diagnose it. See Hill v. Manhattan West Medical Group, 242 AD2d 255 [1st Dept. 1997]; see also Shifrina v. City Of New York, 5 AD3d 660 [2d Dept. 2004][issue of fact exists as to whether plaintiffs' decedent received continuous treatment with respect to his lung cancer where expert opined that plaintiffs' decedent was receiving treatment for the symptoms of lung cancer].

Plaintiffs herein allege that defendants failed to timely diagnose decedent's lung cancer in November of 2003, after multiple chest x-rays revealed a nodular density at the base of decedent's right lung, and during several visits thereafter. According to plaintiffs, the continuous treatment doctrine applies to the period beginning with decedent's initial visit to the emergency room at Bellevue on October 31, 2003 through the date of his last treatment on or about March 8, 2005, because decedent received frequent and continuous treatment at Bellevue during this period for shortness of breath, a symptom of decedent's lung cancer. In their opposition papers, plaintiffs submitted, inter alia, the expert affidavit of a physician duly licensed in New York that is Board Certified in Internal Medicine and Cardiac Diseases.

With respect to the issue of whether the continuous treatment doctrine applies to the period, beginning with the initial visit to the emergency room at Bellevue on October 31, 2003, through the date of decedent's last treatment at the facility, plaintiffs' expert states that, at the time decedent initially presented to the emergency room on October 31, 2003, he made complaints of shortness of breath and chest pain. Thereafter, the treatment rendered to decedent at Bellevue was part of a continuing effort to treat his initial complaint of shortness of breath, although it was being treated as a cardiac problem as opposed to a pulmonary issue. It is the opinion of plaintiff's expert that since decedent was a patient with a history of heavy smoking and emphysema, his shortness of breath was indicative of lung cancer, a condition, which, according to the expert, decedent suffered from in November of 2003.

According to plaintiffs' expert, decedent's treatment for shortness of breath continued after his discharge from Bellevue on November 15, 2003, following his coronary bypass surgery. Plaintiffs' expert sets forth that:

"[i]t is [his] opinion based on a reasonable degree of medical certainty that Mr. Czajka's visits to Dr. Yehudai were for the purpose of monitoring his health conditions including shortness of breath. The visits with Dr. Yehudai were not separate and discreet visits but were part of a continuing effort by this physician to treat a particular complaint, in this case, decedent's initial complaint of shortness of breath which was being treated as a cardiac problem as opposed to a pulmonary issue. The fact that Dr. Yehudai would ask the plaintiff if he still had complaints of shortness of breath is clear proof that [Dr. Yehudai] was monitoring this condition. The fact that Mr. Czajka continued to make these complaints also indicates that he believed that Dr. Yehudai was treating him for this problem."

In addition to the affidavit of plaintiffs' expert, the medical records, relating to the treatment rendered to decedent at Bellevue during the period at issue, indicate that decedent was not being seen at Bellevue merely for the purpose of conducting separate and discreet examinations. It appears that decedent was routinely examined and questioned with respect to his shortness of breath, which, according to plaintiffs, was incorrectly being treated as a cardiac problem as opposed to a pulmonary issue. In fact, a clinical note dated February 15, 2005 indicated that decedent had ongoing dyspnea (shortness of breath), demonstrating that shortness of breath was an ongoing health concern of both decedent and his physicians, and was being monitored and treated continuously.

Based on the affidavit of plaintiffs' expert, as well as the medical records relating to medical treatment rendered to decedent at Bellevue Hospital, an issue of fact exists as to whether decedent was receiving continuous treatment with respect to a symptom of his lung cancer, i.e., shortness of breath, from the time of his initial visit to the emergency room at Bellevue, on October 31, 2003 through the date of decedent's last treatment at the facility. Accordingly, that portion of defendants' motion seeking the dismissal of the medical malpractice, lack of informed consent, and hospital liability causes of action contained in plaintiffs' complaint, on the ground that plaintiffs failed to serve a timely notice of claim, is denied. [*8]

Statute of Limitations

Defendants further move for leave to amend their respective answers, pursuant to CPLR § 3025(b), to include a statute of limitations defense. Defendants argue that leave to amend should be granted, in this action, because not only does their statute of limitations defense have merit, but because plaintiffs cannot claim prejudice or surprise by defendants' assertion of a statute of limitations defense, at this time. Plaintiffs' oppose this portion of defendants' motion, arguing that granting defendants leave to amend their answers to assert a statute of limitations defense after all discovery has been completed, the Note of Issue having been filed, and a firm trial date selected would result in significant prejudice. Plaintiffs' argue that they relied on defendants failure to assert a statute of limitations defense in their answers, as a waiver of that defense. Plaintiffs point out that defendants' instant motion for leave to amend is made approximately two years following the filing of the notice of claim and approximately one year following the service of defendants answer. As a result of defendants failure to assert a statute of limitations defense, in their answer, and their delay in seeking an amendment, plaintiffs participated in lengthy discovery proceedings and are now in jeopardy of having several avenues of recovery against the defendants obliterated.

CPLR 3025(b) sets forth, in pertinent part that, leave to amend a pleading "shall be freely given upon such terms as may be just . . . ." Notwithstanding, "where the amendment is sought after a long delay, and a statement of readiness has been filed, judicial discretion in allowing the amendment should be discreet, circumspect, prudent and cautious'." Cseh v. New York City Transit Authority, 240 AD2d 270 [1st Dept. 1997]; see also Countrywide Funding Corp. v. Reynolds, 41 AD3d 524 [2d Dept. 2007]["where an application for leave to amend is sought after a long delay and the case has been certified as ready for trial, judicial discretion in allowing such amendments should be discrete, circumspect, prudent, and cautious'"]; Comsewogue Union Free School Dist. v. Allied-Trent Roofing Systems Inc., 15 AD3d 523 [2d Dept. 2005]["when leave [to amend] is sought on the eve of trial, judicial discretion should be exercised sparingly"]. The decision whether to grant leave to amend a pleading is left to the discretion of the trial court, and in exercising such discretion the court is to consider "how long the amending party was aware of the facts upon which the motion was predicated, whether the amendment is meritorious, and whether a reasonable excuse for the delay was offered." Romeo v. Arrigo, 254 AD2d 270 [2d Dept. 1998]; Rose v. Velletri, supra.

Defendants herein seek leave to amend their answers to assert a statute of limitations defense only after discovery has been completed and the action is ready for trial, even though they were aware of the facts upon which this defense is predicated, i.e., the dates of treatment at issue, prior to the commencement of this action. The court notes that plaintiffs moved, previously, to amend their notice of claim on a temporal basis, which did not prompt defendants to assert their temporal defense of statute of limitations, in their answer. Despite being aware of the relevant dates of decedent's treatment from the outset, defendants, significantly, offer no excuse for their failure to include a statute of limitations defense in their answers, nor have they offered any excuse as to why they delayed approximately one (1) year before seeking to amend their answers to assert the defense. The court acknowledges that the amendment sought by defendants is [*9]meritorious, as some of the dates of defendants' alleged malpractice occurred outside of the limitations period. Nevertheless, as the court set forth above, triable issues still remain as to whether the continuous treatment doctrine is applicable to this action, and, thus, whether the action as it relates to these dates of treatment is timely.

With respect to prejudice, as a result of defendants' delay in seeking to amend their answers to include a statute of limitations defense plaintiffs have suffered prejudice. Plaintiffs have prepared their case in response to the original answers served by the defendants (see Rose v. Velletri, 202 AD2d 566 [2d Dept. 1994]; F.G.L. Knitting Mills, Inc. v 1087 Flushing Property, Inc., 191 AD2d 533 [2d Dept. 1993]), and they proceeded, to their detriment, through discovery, which included, inter alia, ten (10) depositions, under the impression that defendants waived any statute of limitations defense (See Cseh v. New York City Transit Authority, supra; see also Excelsior Insurance Co. v. Antretter Contracting Corp., 262 v. 124 [1999]). As a result, plaintiffs did not explore issues relating to the applicability of the continuous treatment doctrine and how that doctrine relates to the ongoing treatment plaintiff received at Bellevue, beginning with his first hospital visit in October of 2003 through the time he was diagnosed with stage four (4) lung cancer.^[FN5] It can not be denied that plaintiffs have devoted substantial resources to ready themselves for the trial of this action, and the court feels that it would be an imprudent exercise of discretion to permit defendants to amend their answers on the eve of trial, especially where there has been no excuse provided by defendants for its delay in seeking the amendment. Accordingly, the court, in its discretion, denies that portion of defendants' motion for leave to amend their respective answers, pursuant to CPLR § 3025(b), to include a statute of limitations defense. Furthermore, as a result, those portions of defendants' motion that seek dismissal of various claims asserted by plaintiffs, as time barred, are also denied.

Departures From Good and Accepted Medical Practice

Defendants also move for summary judgment, pursuant to CPLR §3212, dismissing plaintiffs' wrongful death claims asserted against Dr. Yehudai and NYCHHC, based on the treatment provided to decedent by Dr. Yehudai on March 3, 2004 and July 6, 2004 ^[FN6], [*10]arguing that Dr. Yehudai did not depart from good and accepted medical practice in his treatment of decedent during these visits. "[T]he remedy of summary judgment is a drastic one, which should not be granted when there is any doubt as to the existence of a triable issue or where the issue is even arguable, since it serves to deprive a party of his day in court" (Byrnes v. Scott, 175 AD2d 786 [1st Dept. 1991], quoting Gibson v. Am. Export, 125 AD2d 65 [1st Dept. 1987]). Initially, "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; see also Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). A failure by the movant in demonstrating, prima facie, its entitlement to judgment as a matter of law requires the denial of summary judgment, regardless of the sufficiency of the opposing papers (see Alvarez v. Prospect, supra; Winegrad v. New York Univ. Med. Center, supra). Where a prima facie showing of entitlement to judgment, as a matter of law, has been properly demonstrated, the burden then shifts to the party opposing the motion to produce evidence that establishes the existence of material issues of fact which require a trial in the action (see Alvarez v. Prospect, supra; Zuckerman v. City of New York, supra).

In support of their motion, defendants submit, inter alia, the affidavit of a physician licensed to practice medicine in New York, who is board certified in internal medicine, as well as being board certified in the subspecialty of cardiovascular diseases. Following a review of plaintiffs' complaint and bill of particulars, decedent's medical records and the deposition transcript of Dr. Yehudai, defendants' expert opined that "Dr. Yehudai did not depart from good and accepted medical practice in failing to suspect lung cancer and either make a diagnosis or more accurately refer the patient for a lung cancer work up." Defendants' expert states that it was unlikely that the shortness of breath that decedent reported on his visits to Dr. Yehudai on March 3, 2004 and July 6, 2004 was caused by lung cancer, and was more likely due to the fact that decedent was recovering from coronary bypass surgery. According to the expert, because the decedent was recovering from a three vessel CABG, his shortness of breath was improving, and he had not complained of chest pain during these visits, it was not a departure for Dr. Yehudai not to refer the patient for a work-up for lung cancer.

With respect to the adequacy of Dr. Yehudai's review of decedent's chart at the visits of March 3, 2004 and July 6, 2004, defendants' expert opines that it was consistent with the standard of care for Dr. Yehudai to take a history from decedent's test results without requesting the progress notes of decedent's admission. Defendants' expert sets forth that although it would have been preferable for Dr. Yehudai to review the progress notes relating to decedent's admission, these notes "contain nothing remotely suggesting the possibility of lung cancer." The expert further sets forth that it was not a departure from good and accepted medical practice for Dr. Yehudai not to focus on the x-ray reports from decedent's admission. Lastly, defendants' expert opines that Dr. Yehudai did not depart from good and accepted medical practice by not ordering x-rays on March 3, 2004 [*11]and/or July 6, 2004. According to the expert, decedent was recovering well from his coronary bypass surgery and "was without significant symptoms or problems." Therefore, "[t]here was simply no need for Dr. Yehudai to review x-ray reports from the admission or to order new x-rays to compare with earlier x-rays."

In opposition to this portion of defendants' motion, plaintiffs' rely on the affidavit of their expert ^[FN7]; he states that Dr. Yehudai departed from good and accepted medical practice in failing to review prior entries made in decedent's medical chart, including prior radiology reports, when he treated decedent. Plaintiffs' expert further states that it was "a departure from good and acceptable medical practice for Dr. Yehudia to fail to order chest x-rays based on [decedent's] ongoing complaints of shortness of breath, particularly in the case of a patient who was a heavy smoker and had emphysema." According to plaintiffs' expert, in November of 2003 decedent was suffering from cancer that was relatively isolated, and decedent had a significant chance of cure, if given appropriate treatment, at that time. However, due to the negligence of defendants, the decedent's lung cancer was permitted to metastasize throughout decedent's body, and ultimately led to his death.

Based upon the conflicting expert affidavits submitted by the parties, it appears that issues of fact and credibility exist in connection with whether Dr. Yehudai departed from good and accepted medical practice in connection with the treatment provided to decedent on March 3, 2004 and July 6, 2004. Such issues cannot be resolved on this motion for summary judgment (see Bradley v. Soundview Healthcenter, 4 AD3d 194 [1st Dept. 2004]; Morris v Lenox Hill Hosp., 232 AD2d 184 [1996]). Accordingly, that portion of defendants' motion for summary judgment, pursuant to CPLR §3212, with respect to plaintiffs' claims relating to the allegedly negligent medical treatment rendered by Dr. Yehudai on March 3, 2004 and July 6, 2004 is denied.

Derivative Claim

Lastly, defendants argue that the caption indicates that decedent's daughter Agnes Kantorowska, improperly asserts a claim in her individual capacity. Although the plaintiffs' complaint does not include any derivative cause of action by Agnes Kantorowska, in an [*12]abundance of caution defendants seek to dismiss such a claim. Defendants further argue that although decedent's wife, Wanda Czajka, might have asserted a derivative claim for loss of services for the period before decedent's death, she did not.

Plaintiffs do not offer any opposition to defendants' motion to dismiss any purported derivative cause of action by Agnes Kantorowska, apparently acknowledging that any damages sought by decedent's daughter, as a distributee of decedent, for wrongful death cannot be sought by her in her individual capacity, but only as the duly appointed representative of the decedent.

Plaintiffs do, however, oppose defendants' contention that Wanda Czajka did not assert a derivative claim for loss of services for the period before decedent's death, arguing that such a loss of consortium claim was properly pled in the complaint.

"[T]here can be no loss of consortium claim in a wrongful death action." St. Joseph's Medical Center, 167 AD2d 530 [2d Dept. 1990]; see also Liff v. Schildkrout, 49 NY2d 622 [1980]; Dobin v. Town of Islip, 11 AD3d 577 [2d Dept. 2004]. Notwithstanding, a loss of consortium claim may be "permitted to reflect loss of consortium during the period of decedent's conscious pain and suffering' as part of a personal injury action." Ruiz v. New York City Health and Hospitals Corp., 165 AD2d 75 [1st Dept. 1991], quoting Liff v. Schildkrout, supra; see also Mandel v. New York County Public Administrator, 29 AD3d 869 [2d Dept. 2006]. In the instant action, plaintiffs' allege in their complaint that "[b]y reason of the death of STANISLAW CZAJKA, plaintiff WANDA CZAJKA has been and will continue to be deprived of the love, support, services, consortium and society of decedent, all to her damage." As plaintiffs' expressly set forth in their complaint that the damages they seek for Wanda Czajka's loss of consortium are damages solely resulting from the death of her husband, the complaint can not be read to include a derivative claim for loss of services for the period before decedent's death.

Based on the foregoing, it is hereby

ORDERED that that portion of defendants' motion to dismiss the medical malpractice, lack of informed consent, and hospital liability causes of action contained in plaintiffs' complaint on the ground that plaintiffs failed to serve a timely notice of claim is denied; and it is further

ORDERED that that portion of defendants' motion seeking leave to amend their respective answers, pursuant to CPLR § 3025(b), to include a statute of limitations defense is denied; and it is further

ORDERED that those portions of defendants' motion dismissing various claims as time-barred are denied; and it is further

ORDERED that that portion of defendants' motion for summary judgment, pursuant to CPLR §3212, dismissing plaintiffs' wrongful death claims asserted against Dr. Yehudai and NYCHHC based on the treatment provided to decedent by Dr. Yehudai on March 3, 2004 and July 6, 2004 is denied; and it is further

ORDERED that that portion of defendants motion seeking to dismiss plaintiffs' derivative claim for loss of consortium is granted. [*13]

Dated:10/1/2007

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J.S.C.