FILED: KINGS COUNTY CLERK 07/08/ :37 PM INDEX NO /2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/08/2016

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1 FILED: KINGS COUNTY CLERK 07/08/ :37 PM INDEX NO /2016 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 07/08/2016 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF KINGS x MILUTIN JASKIC Plaintiff, - against - NOTICE OF MOTION Index No.: /2016 JILL K. JACKSON, M.D., ABRAHAM BERGER, M.D., SHEFALI KOTHARY, M.D., SOL DAN, M.D., JOSEPH NASH, RPA-C, IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER Defendant. x PLEASE TAKE NOTICE, that upon the affirmation of PRIYA KUMAR, ESQ. dated the 8th day of July, 2016, the supporting exhibits annexed hereto and upon all the pleadings and proceedings hereto had herein, the defendants ABRAHAM BERGER, M.D., SOL DAN, M.D., IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER will move this Honorable Court at the courthouse located at 360 Adams Street, Brooklyn, New York 11201, in the County of Kings, City and State of New York, on the 3rd day of August, 2016, at 9:30 o'clock in the forenoon of that day or as soon thereafter as counsel may be heard for an Order: 1. Pursuant to Civil Practice Law and Rules 214-a, 208 and 3211(a)(5) dismissing all claims with prejudice as against defendants ABRAHAM BERGER, M.D., SOL DAN, M.D., IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER upon the ground that plaintiff failed to comply with the applicable statute of limitations; and 2. Granting such other and further relief as this Court deems just and proper. PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR 2214(b) that, answering Affidavits or other papers in opposition, if any, must be served upon the undersigned at least seven (7) days prior to the return of this motion. { DOCX } 1 of 9

2 Dated: New York, New York July 8, 2016 Yours, etc. yi,n,ar 'TA)) avivt_ BY: PRIYA KUMAR, ESQ. AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP Attorneys for Defendants ABRAHAM BERGER, M.D., SOL DAN, M.D., IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER 600 Third Avenue New York, NY (212) To: Alvin C. Gordon, Esq. GORDON LAW FIMR OF NEW YORK, LLP Attorneys for Plaintiff 45 Broadway, 12th Floor New York, NY (718) { DOCX } 2 of 9

3 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF KINGS x MILUTIN JASKIC Plaintiff, - against - AFFIRMATION IN SUPPORT Index No.: /2016 JILL K. JACKSON, M.D., ABRAHAM BERGER, M.D., SHEFALI KOTHARY, M.D., SOL DAN, M.D., JOSEPH NASH, RPA-C, IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER Defendant. x PRIYA KUMAR, an attorney duly admitted to practice before the Courts of the State of New York, hereby affirms under the penalties of perjury and upon information and belief as follows: 1. I am an associate with the law firm of AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, attorneys for defendants ABRAHAM BERGER, M.D., SOL DAN, M.D., IRA DRESCHNER, M.D., and BETH ISRAEL MEDICAL CENTER and as such, I am fully familiar with the facts and circumstances of the within action, based upon a review of the file maintained by this office. 2. This affirmation is made in support of the defendants' pre-answer motion seeking an order pursuant to Civil Practice Law and Rules 214-a, 208 and 3211(a)(5) dismissing the action against ABRAHAM BERGER, M.D. ("Dr. Berger"), SOL DAN, M.D. ("Dr. Dan"), IRA DRESCHNER, M.D. ("Dr. Dreschner") and BETH ISRAEL MEDICAL CENTER ("BIMC") (collectively "defendants") due to the plaintiff's failure to comply with the applicable statute of limitations and granting such other and further relief, as this court may deem just and proper. { DOCX } 1 3 of 9

4 RELEVANT FACTS1 3. On or about April 22, 2012,the plaintiff presented to the Emergency Room at defendant BIMC with complaints of right elbow lacerations, caused by glass thrown at his place of employment. The plaintiff's right elbow laceration was sutured, and he was discharged home. pain.3 4. The plaintiff re-presented on or about May 22, 2012,complaining of right elbow 5. Subsequently, the plaintiff was seen by a physician in Serbia on February 23, 2016 and allegedly underwent surgery to remove a piece of glass from his right elbow.4 6. The plaintiff alleges that the defendants were negligent in the medical treatment of the plaintiff's right elbow lacerations on April 22, 2012 and through May 22, The plaintiff further alleges that defendants failed to properly and timely remove a piece of glass from the plaintiff's right elbow. Additionally, the plaintiff pleads causes of actions based on lack of informed consent and res ispa loquitor.5 26, PROCEDURAL HISTORY 7. This action was commenced with the filing of a Summons and Complaint on May 8. Defendant Dr. Dan was served on June 7, Thereafter, defendants Dr. Berger, Dr. Dreschner, and BIMC were served on June 20, ARGUMENT THIS ACTION SOUNDING IN MEDICAL MALRPACTICE IS TIME-BARRED AND SHOULD BE DISMISSED 1 A11 facts are based on the plaintiff s Summons and Complaint annexed hereto as Exhibit "A." 2 See Exhibit "A." 3 Li 4 Id. 5 Id. 6 Id. { DOCX } 2 4 of 9

5 9. This action against defendants as to any and all medical treatment rendered on April 22, 2012 and through May 22, 2012 should be dismissed pursuant to CPLR 3211(a)(5) in its entirety and with prejudice on the grounds that it was not commenced within the applicable statute of limitations governing medical malpractice actions set forth in CPLR 214-a. Despite the plaintiff's contention, no other recognized toll or extension of the statutory period to file a medical malpractice action applies to this case. Accordingly, the time to file this action expired on November 22, 2014 and therefore dismissal is the appropriate remedy. 10. Defendants' motion is brought pursuant to CPLR 3211(a)(5), which states that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that... the cause of action may not be maintained because of... statute of limitations.."7 11. Pursuant to CPLR 214-a, the statute of limitations in a medical malpractice action is two years and six months, and runs from "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."8 12. The plaintiff alleges in the Complaint that the defendants were negligent in the medical treatment of the plaintiff's right elbow lacerations on April 22, 2012 and through May 22, Thus, pursuant to CPLR 214-a, the time to file this action expired on November 22, However, the plaintiff did not file his Complaint until on or about May 26, 2016,more than eighteen (18) months after the statute of limitations expired. Therefore, this action was untimely commenced and should be dismissed as to any and all acts of alleged medical malpractice by the defendants for treatment rendered to the plaintiff on April 22, 2012 and through May 22, N.Y. C.P.L.R 3211(a)(5). 8 N.Y. CPLR 214-a. { DOCX 3 5 of 9

6 A. THIS CASE SOUNDS IN MEDICAL MALPRACTICE AND IS SUBJECT TO THE STATUTORY TIME LIMTATIONS PURSUANT TO CPLR 214-a. 13. This action brought by the plaintiff sounds in medical malpractice as the allegations arise out of medical treatment rendered by the defendants on April 22, 2012 and through May 22, 2012 and is therefore time-barred by the applicable statute of limitations of two years and six months. 14. "[M]edical malpractice is simply a form of negligence, [and] no rigid analytical line separates the two."9 "The determinative question is 'whether the challenged conduct bears a substantial relationship to the rendition of medical treatment to a particular patient.'"10 Thus, where the plaintiff's claims of negligence are directly related to the treatment rendered to him by the defendants, the claims asserted sound in medical malpractice The courts have routinely held that claims related to lack of informed consent bear "a substantial relationship to the rendition of medical treatment to a particular patient" and thus sound in medical malpractice. Therefore, claims of lack of informed consent are also governed by a two years and six month statute of limitations Here, the plaintiff's claims of negligence involve allegations surrounding the medical treatment of his right elbow lacerations. Since the plaintiff's claims of negligence arise out of medical treatment rendered by the defendants, this action for damages sounds in medical malpractice and is therefore subject to the statutory time limitations pursuant to CPLR 214-a. B. THE "DISCOVERY RULE" PURSUANT TO CPLR 214-a IS NOT APPLICABLE 17. The plaintiff inaccurately contends that the "discovery rule' pursuant to CPLR 9 Scott v Uljanov,74 N.Y.2d 673, 674 (1989). 10 Bernard v. Goldweber,34 Misc 3d 1223[A], 2012 NY Slip Op 50214[U] (Sup Ct, NY County 2012), citing Weiner v. Lenox Hill Hosp.,88 N.Y.2d 784, 788 (1996), Wahler v. Lockport Physical Therapy,275 A.D.2d 906, 907 (4th Dep't 2000). 11 See Barreras v. Goldweber, 2012 NY Slip Op 32588[U] (Sup Ct, NY County 2012). 12 De Leon v. Hospital of Albert Einstein College of Medicine, 164 A.D.2d 743 (1st Dept. 1991). { DOCX } 4 6 of 9

7 214-a applies to the case at bar. However, under the facts of this case as presented by the plaintiff, there is no basis for the invocation of the "discovery rule" because there was no "foreign object" found. 18. The "discovery rule" is a statutory provision that tolls the time to file a medical malpractice action "where the action is based upon the discovery of a foreign object in the body of the patient." In such circumstances, the action may be commenced within one (1) year of the date of discovery or of the date of discovery of facts which would reasonably lead to such discovery of the foreign object, whichever is earlier A "foreign object" for the purposes of the "discovery rule" to toll the statutory period is "one that the doctor did not intend to leave inside the body." 14 Thus, the foreign object exemption has been continually limited to medically inserted objects, and not objects plaintiffs already had in them when they presented themselves to defendants On point with the facts herein is Garrett v. Brooklyn Hospital,99 A.D.2d 541 (2nd Dep't 1984). There, the plaintiff presented to the defendants after having lacerated her hand on some glass. The plaintiff underwent a wide excision surgery and was subsequently told that her surgery was successful. Approximately sixteen (16) years later, a foreign body was discovered upon x-ray, and subsequently a piece of glass was surgically removed from the plaintiff's hand. The court held that the glass fragment at issue did not constitute a "foreign object" because "it was not introduced into the plaintiff's body as the result of any affirmative act on the part of 13 LaBarbera v New York Eye & Ear Infirmary,230 A.D.2d 303, 307 (1st Dep't 1997), aff'd 91 N.Y.2d 207 (1998). 14 Id. 15 Garrett v. Brooklyn Hosp., 115 Misc 2d 933, (Sup Ct, Kings County 1982), citing Famulare v. Huntington Hosp.,78 A.D.2d 547 [tooth root]; Soto v. Greenpoint Hosp.,76 A.D.2d 928 [toy in esophagus]; Florio v. Cook,65 A.D.d 548[tumor]), aftd, 99 A.D.2d 541 (2nd Dep't 1984); see generally Flanagan v. Mt. Eden General Hospital, 24 N.Y.2d 427 (1969). { DOCX 5 7 of 9

8 defendant's employees."16 The court argued that "when a patient seeks medical attention by reason of a nonmedically emplaced foreign object within his body, the failure of the doctor or hospital to totally remove the offending object is necessarily a matter of professional judgment or discretion."17 Simply stated, the relevant distinction is whether the foreign object was left within a patient's body through an affirmative action or whether the foreign object was found exclusively upon diagnostic judgment or discretion Here, the plaintiff, similar to the plaintiff in Garrett, presented to defendants with glass already embedded in his right elbow. Thus, the foreign object, i.e. glass fragment, which was allegedly found in the plaintiffs elbow in February 2016 was in no way medically inserted through any affirmative action on the part of the defendants and accordingly is not a foreign object for the purposes of the "discovery rule." 22. For the reasons set forth above, while the malpractice in the case at bar, loosely speaking, involves a foreign object, it does not come within the "foreign object" exception to the general rule that a cause of action based upon medical malpractice accrues at the time of the commission of the act. Therefore, the "discovery rule does not apply. C. NO OTHER TOLL OR EXCEPTION TO THE STATUTE OF LIMITATIONS FOR MEDICAL MALPRACTICE ACTIONS APPLY TO THIS MATTER 23. No other recognized toll or exception to the two year and six months statute of limitations for medical malpractice actions is applicable in this case; thus, the plaintiffs action is untimely and should be dismissed. 24. The "Continuous Treatment" doctrine, codified in CPLR 214-a, tolls the statutory period in which to file an action for medical malpractice "when the course of treatment 16 Garret,99 A.D.2d at Garrett, 115 Misc 2d at See generally Garrett v. Brooklyn Hosp., 115 Misc 2d 933) (Sup Ct, Kings County 1982), aftd, 99 A.D.2d 541 (2" Dep't 1984); Flanagan v. Mt. Eden General Hosp.,24 N.Y.2d 427 (1969); Famulare v. Huntington Hosp.,78 A.D.2d 547 (2nd Dep't 1980); Soto v. Greenpoint Hosp.,76 A.D.2d 928 (2 nd Dep't 1980); Florio v Cook,65 A.D.d 548 (2nd Dep't 1978). { DOCX } 6 8 of 9

9 which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint."19 Plaintiff alleges in his Complaint that the last date he sought treatment from the defendants for the medical condition at issue was on May 22, The plaintiff did not seek any subsequent treatment from the defendants after May 22, Thus, there was no continuous course of treatment rendered by the defendants with respect to the complaint giving rise to this lawsuit that would extend the statute of limitations for the alleged malpractice beyond November 22, Since no other recognized tolling provision or exception to the statute of limitations for medical malpractice actions exists in this case, the plaintiff's action is time-barred pursuant to CPLR 214-a, as stated above. CONCLUSION 27. For the reasons set forth herein, this action must, as a matter of law, be dismissed in all respects due to the plaintiff's failure to comply with the applicable statute of limitations. 28. No prior request for the relief contained herein has been made before this Court or any other Court. WHEREFORE, it is respectfully submitted that the within motion should be granted in its entirety, and that the Court should grant such other and further relief as may be just and proper. Dated: New York, NY July 8, payypa PRIM X KUMAR, ESQ. 19 Chestnut v. Bobb-McKoy,94 A.D.3d 659, 660 (1st Dep't 2012) (citations omitted). 20 See Exhibit "A." 21 Id. { DOCX } 7 9 of 9