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

Upon review of the submitted papers and after considering oral argument heard June 10, 2025, pursuant to CPLR § 3212, the motion for summary judgment filed by Defendants Taraneh Firooznia, as Administrator of the Estate of Hossein Firooznia, Nahid Hedayati, as the Administrator of the estate of Reza Hedayati, and Richard Fischbein, as the Administrator of the Estate of Jeffrey Fischbein, M.D., (hereinafter "Defendant Radiologists") (Motion Sequence #6) is GRANTED and DENIED in part. Additionally, the motion seeking dismissal pursuant to CPLR § 3211(a)(5) and summary judgment pursuant to CPLR § 3212 filed by Defendants Wyckoff Heights Medical Center (hereinafter "Wyckoff") and Bernard Chukwuneke (Motion Sequence #9) is also GRANTED and DENIED in part.

18-year old Luis Torres presented to the emergency department of Wyckoff Heights Medical Center on April 17, 2012, with left knee pain and swelling.^[FN1] X-rays were taken and reviewed by Dr. Fischbein, who noted an abnormality to the distal femur and recommended orthopedic consultation.^[FN2] Mr. Torres was then discharged with instructions to follow-up within two days if his condition worsened.^[FN3]

He returned to the Wyckoff Emergency Department on June 5, 2012, with similar complaints.^[FN4] X-rays were again taken and reviewed by Dr. Firooznia ^[FN5] who diagnosed Mr. Torres with Osgood Schlatter disease then discharged him with instructions to be seen within three days.^[FN6]

On June 21, 2012, Mr. Torres was brought to Wyckoff by ambulance after he fell in his [*2]home. The X-rays on this date revealed a fracture and possible pathological changes.^[FN7] Dr. Chukwuneke also provided a surgical consultation.^[FN8] During this visit, Dr. Chukwuneke drained fluid from Mr. Torres' knee, placed Mr. Torres' left knee in an immobilizer, and scheduled an appointment for Mr. Torres with the Orthopedic Clinic for June 29, 2012.^[FN9] After Dr. Chukwuneke's shift ended, Dr. Hedayati completed Mr. Torres' x-ray report and determined that Mr. Torres had a fracture of the supracondylar distal shaft of the femur with marked osteoporosis and thickening of the adjacent soft tissues possibly due to hydrarthrosis and/or hemarthrosis and hematoma. Dr. Hedayati finalized the radiology report noting possible malignancy.^[FN10]

On September 4, 2012, Mr. Torres sought medical attention at Wyckoff's Orthopedic Clinic.^[FN11] X-rays suggested destructive bone lesions.^[FN12] The radiology report compared the x-rays from September 4, 2012 and June 5, 2012 noted "destructive lesions of bone [which] may be secondary to infection, or secondary to malignant lesion of bone."^[FN13] Mr. Torres was instructed to present to the emergency department of Kings County Hospital or Bellevue Medical Center to rule out chondrosarcoma.^[FN14] He was also referred to the Hospital for Special Surgery and Hospital for Joint Diseases.^[FN15]

On September 27, 2012, emergency medical services brought Mr. Torres to Woodhull Hospital, where his x-rays suggested the presence of osteosarcoma.^[FN16] In October 2012, a biopsy confirmed malignant spindle neoplasm. On March 9, 2013, Mr. Torres passed away at Woodhull Hospital at the age of 19.^[FN17]

On February 18, 2015, Plaintiff Carol Torres, decedent's wife, commenced this action [*3]alleging medical malpractice, wrongful death, lack of informed consent, and related claims.^[FN18]

On June 11, 2018, Wyckoff filed a Third-Party Summons and Complaint alleging that Dr. Fischbein is liable for medical malpractice.^[FN19]

On September 26, 2024, Defendant Radiologists and Defendants Wyckoff and Dr. Chukwuneke, respectively, moved for the instant motions.^[FN20] On May 5, 2025, Plaintiffs opposed Defendants' motions ^[FN21] and on May 23, 2025, Defendants replied to Plaintiffs' Opposition.^[FN22]

Dismissal Pursuant to CPLR §§ 3211(a)(5), 214-a

CPLR § 3211(a)(5) permits dismissal of a cause of action that 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, omission, or failure, or from the date of last treatment where continuous treatment for the same condition occurred.

A defendant seeking dismissal under CPLR § 3211(a)(5) bears the initial burden of establishing, prima facie, that the time to sue has expired. Muscat v. Mid-Hudson Med. Grp., P.C., 135 AD3d 915, 916 (2d Dept. 2016). Once that showing is made, the burden shifts to the plaintiff to raise a factual issue as to tolling, inapplicability, or timely commencement. Marrero v. Sosinsky, 130 AD3d 883, 883 (2d Dept. 2015).

Summary Judgment Pursuant to CPLR § 3212

Summary judgment is a drastic remedy that deprives a litigant of the opportunity to present their case at trial and should only be granted where no genuine issue of material fact exists. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). The Court's role on such a motion is not to resolve factual disputes or assess credibility, but solely to determine whether triable issues exist. See Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). In making this determination, evidence must be viewed in the light most favorable to the non-moving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

Medical Malpractice and Ordinary Negligence

Medical malpractice involves a negligent act or omission by a healthcare provider in the [*4]course of treatment or substantially related to medical care. See Butler v. Wyckoff Heights Med. Ctr., 233 AD3d 745, 747 (2d Dept. 2024). To establish a cause of action for medical malpractice, a plaintiff must show:

1. A deviation from accepted medical practice; and

2. That the deviation was a proximate cause of injury.

Where the alleged negligence does not involve medical treatment, the claim sounds in ordinary negligence (see Butler, 233 AD3d at 746), requiring the plaintiff to prove:

(1) A duty owed by the defendant to the plaintiff;

(2) A breach of that duty; and

(3) Injury proximately caused by said breach.

On a motion for summary judgment in a medical malpractice action, the defendant must first establish either (a) no departure from accepted practice or (b) that any departure was not a proximate cause of injury. Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022). If met, the plaintiff must submit competent medical evidence raising a triable issue of fact. Cerrone v. N. Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021). Where the parties submit conflicting expert opinions, generally summary judgment is precluded. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024).

Medical Malpractice Claims and The Continuous Treatment Doctrine

Defendant Radiologists (Motion Sequence #6) and Defendants Wyckoff and Dr. Chukwuneke (Motion Sequence #9) move for summary judgment dismissing Plaintiffs' medical malpractice claims pursuant to CPLR § 214-a, asserting that the claims are barred by the statute of limitations.^[FN23]

Plaintiffs oppose, arguing that the continuous treatment doctrine applies and tolls the statute of limitations.^[FN24] Specifically, Plaintiffs contend that the doctrine applies to treatment rendered by Dr. Firooznia, who interpreted, dictated, and signed both the June 5, 2012, and September 4, 2012, x-rays,^[FN25] and by Wyckoff, which provided ongoing care for Mr. Torres' left knee.^[FN26]

Under CPLR § 214-a, the statute of limitations for medical malpractice may be tolled [*5]under the continuous treatment doctrine. Under the continuous treatment doctrine, the two years and six-month statute of limitations period does not begin to run until the end of the course of treatment, that includes the alleged wrongful acts or omissions and relates to the same condition or complaint. See CPLR § 214-a.

The doctrine applies when:

1. During the relevant period, the patient continued to seek, and in fact, obtained, an actual course of treatment from the defendant physician;^[FN27]

2. The treatment was for the same condition underlying the malpractice claim;^[FN28] and

3. the treatment was continuous.^[FN29]

A medical malpractice action must be commenced within two years and six months of the alleged act, or the last date of continuous treatment where treatment was for the same condition. Elkin v. Goodman, 285 AD2d 484, 485 (2d Dept. 2001).

Here, Defendants established the action was commenced more than two and a half years after all but Mr. Torres' last visit to Wyckoff on September 4, 2012. The burden thus shifts to Plaintiffs to raise a triable issue of fact regarding tolling under the continuous treatment doctrine. Id. at 486 (citing Cox v. Kingsboro Med. Grp., 88 NY2d 904 [1996]; Massie v. Crawford, 78 NY2d 516 [1991]).

Plaintiffs did not oppose Defendants' argument that the continuous treatment doctrine does not apply to treatment provided by Drs. Chukwuneke, Hedayati, and Fischbein,^[FN30] Accordingly, Plaintiffs' claims against those Defendants are dismissed with prejudice. See Kelly v. Gonzalez-Torres, 219 AD3d 711 (2d Dept. 2023).

Defendant Dr. Firooznia

The continuous treatment doctrine generally does not apply to diagnosticians, such as radiologists, who provide discrete, intermittent services, unless they maintain a continuous relationship with the patient or act in association with treating physicians. See Cole v. Karanfilian, 117 AD3d 670, 672 (2d Dept. 2014); Elkin, 285 AD2d at 486; Brocco v. Westchester Radiological Assocs., P.C., 175 AD2d 903, 904 (2d Dept. 1991); Rivera v. N.Y.C. Health & Hosps. Corp., 83 Misc 3d 884, 888 (Kings Cnty. Sup. Ct. 2024) ("[The] continuous treatment doctrine applies to a patient who was treated by multiple doctors employed by the same practice or group, including a diagnostician who is an agent or "otherwise acts in relevant association" with those treating or monitoring the patient's condition.").

As to Defendant Dr. Firooznia, Plaintiffs failed to raise questions of fact as to whether the continuous treatment doctrine should toll the statute of limitations period for a medical malpractice cause of action. Here, Mr. Torres sought medical treatment from Wyckoff on June 5, 2012, for left knee pain and was instructed to return for a follow-up appointment in three days. However, Mr. Torres did not return to Wyckoff for a follow-up appointment. His return to Wyckoff after his fall was not part of a planned course of treatment anticipated by Dr. Firooznia. See Gomez, 61 AD3d at 111.

Moreover, Dr. Firooznia's involvement was limited to discrete interpretations on June 5 and September 4, 2012. Elkin, 285 AD2d at 486. Plaintiffs failed to show a continuous relationship or agency.^[FN31] See Brocco, 175 AD2d at 904. Accordingly, the malpractice claim against Dr. Firooznia is time-barred.

Defendant Wyckoff

The record supports that Wyckoff provided a continuous course of treatment between June 21 and September 4, 2012, despite Mr. Torres missing his June 29, 2012 follow-up appointment. See e.g., Rivera, 83 Misc 3d 892.

On June 21, 2012, Wyckoff treated Mr. Torres' knee injury and referred him to its Orthopedic Clinic, which he attended on September 4, 2012. Additionally, the course of treatment concerned Mr. Torres' complaints of left knee pain—the same condition or complaint that forms the basis of Plaintiffs' medical malpractice claim. Accordingly, these facts establish a continuous course of treatment between Mr. Torres and Wyckoff. See Gomez, 61 AD3d at 111; Rivera, 83 Misc 3d 892. As such, the continuous treatment doctrine tolls the statute of limitations period for Plaintiffs' medical malpractice claims as against Defendant Wyckoff.

Summary Judgment as to Defendant Radiologists (Motion Sequence #6)

Defendants submitted expert affirmations from Dr. Benjamin Bashist (radiology)^[FN32] and [*6]Dr. Matthew DiCaprio (orthopedic oncology),^[FN33] opining that Drs. Firooznia and Fischbein met the standard of care and any delay in diagnosis was not a proximate cause of injury. Dr. Bashist opined that Drs. Firooznia and Fischbein satisfied the standard of care in their interpretation of x-rays, their documentation of radiological findings, and their suggestion that Mr. Torres pursue further CT and MRI testing in consultation with orthopedic surgery.^[FN34] As such, Drs. Firooznia and Fischbein were not the proximate cause Mr. Torres' injury. Dr. DiCaprio opined that the alleged delay in diagnosis of Mr. Torres' osteosarcoma between June 2012 and September 2012 was likely not the proximate cause of Mr. Torres' injury.^[FN35]

Plaintiffs' experts, Dr. Stephen Henesch (board-certified radiologist and pediatric radiologist)^[FN36] and Dr. Ilya Iofin (board-certified orthopedic surgeon and orthopedic oncology),^[FN37] opined that the radiologists departed from accepted standards by failing to identify malignancy, compare prior x-rays ^[FN38] and emphasize the need for further imaging.^[FN39] They concluded these failures caused Mr. Torres' cancer to progress.

Defendant Radiologists established prima facie entitlement to summary judgment. Plaintiffs failed to raise triable issues regarding Dr. Firooznia's September 4, 2012 interpretation.^[FN40] Plaintiffs also did not oppose dismissal regarding lack of informed consent claims.^[FN41]

Accordingly, the motion is granted as to medical malpractice and lack of informed consent and denied as to wrongful death and spousal services.

Summary Judgment as to Defendants Wyckoff and Dr. Chukwuneke (Motion Sequence #9)

In support of the motion for summary judgment filed by Defendants Wyckoff and Dr. Chukwuneke, they submitted an expert affirmation from board-certified orthopedic surgeon [*7]Craig L. Levitz, M.D.^[FN42] who opined that Dr. Chukwuneke's June 21, 2012, orthopedic consultation met accepted standards of medical care.^[FN43] In opposition, Plaintiffs' expert, Dr. Iofin, disagreed, asserting that departures caused amputation and death.^[FN44]

Wyckoff met its prima facie burden,^[FN45] but Plaintiffs raised triable issues regarding Wyckoff's care from June 21 to September 4, 2012.^[FN46] Claims against Dr. Chukwuneke are time-barred; and Plaintiffs did not oppose dismissal of vicarious liability claims, which are therefore dismissed. Accordingly, Wyckoff's motion is denied as to malpractice during the June—September period, wrongful death, lack of informed consent, ordinary negligence, and spousal services.

As to Defendant Radiologists' motion for summary judgment (Motion Sequence #6), it is granted and denied in part. Specifically:

• granted as to Plaintiffs' medical malpractice and lack of informed consent claims.

• denied as to Plaintiffs' claims of ordinary negligence, wrongful death, deprivation of spousal services.

As to Defendants Wyckoff and Dr. Chukwuneke's motion for summary judgment (Motion Sequence #9), it is granted and denied in part. Specifically:

• granted as to Plaintiffs' medical malpractice claims against Defendant Dr. Chukwuneke pursuant to CPLR § 214-a.

• granted as to Plaintiffs' medical malpractice claims against Defendant Wyckoff pre-June 21, 2012 treatment as they are time barred.

• granted as to Plaintiffs' vicarious liability claims.

• denied as to Plaintiffs' claims of lack of informed consent, ordinary negligence, wrongful death, deprivation of spousal services.

This constitutes the Decision and Order of the Court.