Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on April 29, 2025, pursuant to CPLR § 3211(a), the Court renders the following Decision and Order on the motion to dismiss by Defendants Carl Kenel-Pierre, M.D. and Interfaith Medical Center ("Defendants"):

1. pursuant to CPLR § 3211(a)(5), Defendants motion to dismiss Plaintiff's cause of action for medical malpractice on statute of limitations grounds is GRANTED.

2. pursuant to CPLR § 3211(a)(7), Defendants' motion to dismiss Plaintiff's cause of action for failure to state a claim based on equitable estoppel, premised on allegations of fraudulent concealment is likewise GRANTED.

Plaintiff commenced this action on April 10, 2024 by filing summons and complaint, asserting claims of medical malpractice ^[FN1] and equitable estoppel based on alleged fraudulent concealment.^[FN2] Plaintiff contends that on December 8, 2020, Dr. Kenel-Pierre failed to remove an existing intrauterine device (IUD) prior to inserting a new one.^[FN3] Plaintiff alleges that by early 2021, she began experiencing pain in her lower abdomen and breast region.^[FN4] On December 9, 2021, Plaintiff returned to Dr. Kenel-Pierre ^[FN5] for further evaluation. Plaintiff asserts that during the December 9, 2021 visit, Dr. Kenel-Pierre fraudulently concealed the fact that the original IUD had not been removed.^[FN6]

On or around March 12, 2024, Plaintiff discovered the original IUD had not been removed and subsequently commenced this action.^[FN7]

Defendants filed the instant motion to dismiss (Motion Sequence #1) on March 5, 2025. Pursuant to CPLR §§ 3211(a)(5) and 214-a, they allege Plaintiff's medical malpractice claims are time-barred by the applicable statute of limitations.^[FN8] Pursuant to CPLR § 3211(a)(7), Defendants seek dismissal given Plaintiff's failure to plead a viable cause of action for fraudulent concealment sufficient to invoke equitable estoppel.^[FN9]

On April 29, 2025, the Court heard oral argument and reserved decision.

CPLR §§ 3211(a)(5), 214-a: Medical Malpractice Statute of Limitations

Under CPLR § 3211(a)(5), a party may move do dismiss an action on various grounds, including that the cause of action is barred by the relevant statute of limitations.

Under CPLR § 214-a, a medical malpractice action must be commenced within two years and six months of the alleged act or omission, or from the last date of continuous treatment for the same condition.

"A defendant who seeks dismissal of a complaint pursuant to CPLR § 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired." Muscat v. Mid-Hudson Med. Grp., P.C., 135 AD3d 915, 916 (2d Dept. 2016). Once defendant establishes that the alleged act of medical malpractice is time-barred, the burden shifts to plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether plaintiff actually commenced the action within the applicable limitations period. Marrero v. Sosinsky, 130 AD3d 883, 883 (2d Dept. 2015).

CPLR § 3211(a)(7): Failure to State a Claim

On a motion to dismiss pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the complaint is liberally construed, allegations are accepted as true, and plaintiffs are afforded every favorable inference. Cortlandt St. Recovery Corp. v. Bonderman, 31 NY3d 30, 38 (2018). The sole inquiry is whether the facts alleged, if proven, fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 87-88 (1994).

The Court merely examines the adequacy of the pleadings. See Davis v. Boeheim, 24 NY3d 262, 268 (2014). The "ultimate question is whether, accepting the allegations and affording these inferences, plaintiff can succeed upon any reasonable view of the facts stated." Perez v. Y & M Transp. Corp., 196 N.Y.S.3d 145, 147 (2d Dept. 2023), quoting Doe v. Bloomberg L.P., 36 NY3d 450, 454 (2021). However, "dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery." Connaughton v. Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 (2017); Pinnacle Cap., LLC v. O'Bleanis, 214 AD3d 913, 915 (2d Dept. 2023).

Medical Malpractice Claim and the Continuous Treatment Doctrine

Defendants argue that Plaintiff's claim is time-barred, as the alleged malpractice occurred on December 8, 2020, and the action was not commenced until April 10, 2024—well beyond the two-and-a-half-year limitations period. Plaintiff invokes the continuous treatment doctrine, asserting that her December 9, 2021 visit to Dr. Kenel-Pierre constituted follow-up care related to the December 2020 procedure. Defendants argue that the continuous treatment doctrine cannot apply because "there was no plan for a continued course of treatment, nor was treatment initiated." Instead, Plaintiff returned to Dr. Kenel-Pierre for a routine gynecological examination.^[FN10] See Massie v. Crawford, 78 NY2d 516, 520 (1991).

Under CPLR § 214-a, the statute of limitations in a medical malpractice case may be tolled pursuant to the continuous treatment doctrine. Under this doctrine, the two years and six-month statute of limitations period does not run until the end of the course of treatment, "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." CPLR § 214-a.

The statute of limitations does not begin to run until the end of the course of treatment where three conditions are met:

(1) the patient continued to seek, and in fact, obtained, an actual course of treatment from the defendant physician during the relevant period;^[FN11]

(2) the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim;^[FN12] and

(3) the treatment was continuous.^[FN13]

In opposition, Plaintiff contends that her December 9, 2021 appointment with Dr. Kenel-Pierre was a follow-up prompted by the pain she suffered after her December 8, 2020 procedure.^[FN14] Thus, Plaintiff asserts that the continuous treatment doctrine is applicable, and her medical malpractice claim is not time-barred by the statute of limitations.^[FN15] However, the record does not support this assertion. There is no evidence of an ongoing course of treatment related to the IUD insertion, nor any indication that further treatment was anticipated by either party. The December 2021 visit appears to have been a routine gynecological examination, not part of a continuous treatment plan.

Defendants satisfied their burden as proponents of the motion to dismiss by demonstrating that this action was commenced more than two and half years after the alleged medical malpractice took place on December 8, 2020. The burden then shifts to the Plaintiff to demonstrate a triable issue of fact with respect to the toll of the Statute of Limitations based upon the continuous treatment doctrine. See Marrero, 130 AD3d at 883; see e.g., Massie, 78 NY2d at 519.

The record does not support that Plaintiff's December 9, 2021 visit to Dr. Kenel-Pierre was part of an ongoing course of treatment related to the December 8, 2020 procedure. See Gomez v. Katz 61 AD3d 108, 111 (2d Dept. 2009) ("The term 'course of treatment' speaks to affirmative and ongoing conduct by the physician such as surgery, therapy, or the prescription of medications."). Rather, the evidence indicates that the December 9, 2021 appointment was a routine gynecological examination, unconnected to any prior treatment plan or follow-up care regarding Plaintiff's IUD.^[FN16] See Massie, 78 NY2d at 519-20.

Moreover, there is no indication in the medical records or the parties' deposition testimony that further treatment was expressly anticipated by both Plaintiff and Dr. Kenel-Pierre following the December 2020 procedure.^[FN17] See Gomez, 61 AD.3d at 113; McDermott v. Torre, 56 NY2d 399, 405 (1982). In fact, Plaintiff was unaware of the retained IUD until 2024, undermining any claim that she sought continued treatment for a known condition. See Young v. N.Y.C. Health & Hosps. Corp., 91 NY2d 291, 297 (1998) (Where a plaintiff lacked awareness of a condition warranting further treatment, the purpose of the continuous treatment doctrine would [*3]not be served); see also McDermott, 56 NY2d at 405.

Accordingly, the continuous treatment doctrine does not apply, and the medical malpractice claim is time-barred. Therefore, Defendant's motion to dismiss pursuant to CPLR § 3211(a)(5) is granted.

Equitable Estoppel Based on Alleged Fraudulent Concealment

Plaintiff also seeks to invoke equitable estoppel, alleging that Dr. Kenel-Pierre fraudulently concealed his failure to remove the original IUD.

A plaintiff seeking to apply the doctrine of equitable estoppel must establish that subsequent and specific actions by a defendant somehow kept plaintiff from timely suing. Robinson v. Jamaica Hosp. Med. Ctr., 240 AD3d 534, 536 (2d Dept. 2025). More specifically, the plaintiff must show that the defendant engaged in subsequent and specific acts of concealment that prevented timely commencement of the action. See Simcuski v. Saeli, 44 NY2d 442, 448 (1978). Accordingly, a plaintiff may invoke equitable estoppel where a physician fraudulently conceals his malpractice, the patient relies upon the physician's representation and advice, which prevents Plaintiff from discovering the malpractice. See Owen v. Mackinnon, 6 AD3d 684, 686 (2d Dept. 2004); Vigliotti v. N. Shore Univ. Hosp., 24 AD3d 752, 755 (2d Dept. 2005).

To establish a claim of fraudulent concealment in connection with medical malpractice, Plaintiff needs to show:

(1) knowledge by the doctor of the malpractice that caused the patient's injury;

(2) an intentional, material misrepresentation by the doctor to the patient known to the doctor to be false at the time the material misrepresentation was made to the patient;

(3) which the patient relied upon.

Here, Plaintiff alleges equitable estoppel when, on or about the December 8, 2020 through the December 9, 2021 appointment, Dr. Kenel-Pierre fraudulently concealed his failure to remove the older IUD ^[FN18] and Plaintiff relied on the representation that he removed the retained IUD.^[FN19]

Defendants contend the fraudulent concealment allegation "is in the nature of a failed diagnosis" and forms part of the medical malpractice claims.^[FN20] As such, they argue that the [*4]fraudulent concealment allegation will not sustain the equitable estoppel claim.^[FN21] Defendants further argue that Plaintiff failed to assert the essential elements of a claim of fraudulent concealment.^[FN22] Specifically, that Dr. Kenel-Pierre made an intentional material misrepresentation to Plaintiff that he knew to be false at the time it was made to Plaintiff.^[FN23]

Plaintiff alleges that Dr. Kenel-Pierre misrepresented the removal of the IUD during the December 2021 visit. However, she fails to plead facts showing that he made an intentional, material misrepresentation known to be false at the time, for the purpose of concealing the alleged malpractice. The alleged concealment is not distinct from the underlying malpractice and therefore cannot support a separate claim. See Rizk v. Cohen, 73 NY2d 98, 105 (1989); Simcuski, 44 NY2d at 452 (holding that non-disclosure or concealment of medical malpractice does not give rise to separate cause of action in fraud); Plain v. Vassar Bros. Hosp., 11 AD3d 922, 923 (2d Dept. 2014) (holding "where the alleged concealment consists of nothing but defendants' failure to disclose the wrongs they had committed, a plaintiff must allege a later fraudulent misrepresentation made for the purpose of concealing the former tort to overcome a statute of limitations defense.").^[FN24]

Plaintiff's reliance on the same conduct to support both her malpractice and estoppel claims is legally insufficient. She has not alleged any subsequent affirmative act of concealment that would toll the statute of limitations. As such, pursuant to CPLR § 3211(a)(7), Defendant's motion to dismiss based upon equitable estoppel grounds is granted.

Based on the foregoing, it is:

ORDERED that Defendants' motion to dismiss Plaintiff's cause of action for medical malpractice pursuant to CPLR § 3211(a)(5) is granted.

It is further ORDERED that Defendants' motion to dismiss Plaintiff's cause of action for equitable estoppel based on fraudulent concealment pursuant to CPLR § 3211(a)(7) is likewise granted.

This constitutes the Decision and Order of the Court.