MEMO TO:
Alexsei Demo US
RESEARCH ID:
#4000864001d452
JURISDICTION:
State
STATE/FORUM:
New York, United States of America
DEPARTMENT:
Not Applicable
ANSWERED ON:
October 3, 2022
CLASSIFICATION:
Torts
Health law
Civil practice and procedure

Issue:

In what circumstances will the statute of limitations for medical malpractice actions be tolled?

Conclusion:

Per N.Y. C.P.L.R. § 214-A (2022), an action for medical, dental, or podiatric malpractice must be commenced within two years and six months of the last treatment where there is continuous treatment for the same illness, injury, or condition. (N.Y. C.P.L.R. § 214-A (2022))

Continuous treatment serves as a toll; the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury. (McDermott v. Torre, 452 N.Y.S.2d 351, 56 N.Y.2d 399 (N.Y. 1982))

The premise underlying the continuous treatment doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so. In the absence of continuing efforts by a doctor to treat a particular condition or complaint, however, those policy reasons do not justify the patient's delay in bringing suit. (Chestnut v. Bobb–McKoy, 2012 N.Y. Slip Op. 03267, 94 A.D.3d 659, 943 N.Y.S.2d 461 (N.Y. App. Div. 2012), Massie v. Crawford, 577 N.Y.S.2d 223, 583 N.E.2d 935, 78 N.Y.2d 516 (N.Y. 1991))

"Continuous treatment" involves more than a physician-patient relationship. There must be ongoing treatment of a medical condition. Continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have their condition checked. Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not a course of treatment. (Massie v. Crawford, 577 N.Y.S.2d 223, 583 N.E.2d 935, 78 N.Y.2d 516 (N.Y. 1991))

In Gordon v. Magun, 612 N.Y.S.2d 373, 634 N.E.2d 974, 83 N.Y.2d 881 (N.Y. 1994), the plaintiff invoked the continuous treatment doctrine to toll the statute of limitations alleging, among other things, that the defendant negligently failed to diagnose cancer during initial consultations. The New York Court of Appeals concluded that the continuous treatment doctrine was inapplicable. The Court explained that the decedent's first consultation was undertaken for a purpose wholly independent of the second and involved neither ongoing provision of services by the defendant nor the expectation of any future contact between the patient and physician after discharge from the hospital.

In Massie v. Crawford, 577 N.Y.S.2d 223, 583 N.E.2d 935, 78 N.Y.2d 516 (N.Y. 1991), the New York Court of Appeals held that the continuous treatment doctrine was not applicable. The Court noted that, in this case, the single procedure that the defendant performed for the plaintiff was the insertion of an IUD. The plaintiff's subsequent visits to the defendant were for routine gynecological examinations, not therapy to correct a medical condition. Consequently, these visits may not serve as a basis for applying the continuous treatment exception because the plaintiff could have interrupted the services and switched physicians at any time without jeopardizing her health.

Pursuant to N.Y. C.P.L.R. § 208(a), if a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues and the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by section 208 beyond ten years after the cause of action accrues. (N.Y. C.P.L.R. § 208 (2022))

The maximum 10-year infancy toll found in N.Y. C.P.L.R. § 208 is measured not from the end of a period of continuous treatment, but from the accrual of the cause of action. (Rivera v. Brookdale Hosp. Medical Ctr., 205 A.D.2d 677, 613 N.Y.S.2d 645, 1994 N.Y. App. Div. LEXIS 6447 (N.Y. App. Div. 2d Dep't June 20, 1994))

Law:

Per N.Y. C.P.L.R. § 214-A (2022), an action for medical, dental, or podiatric malpractice must be commenced within two years and six months of the last treatment where there is continuous treatment for the same illness, injury, or condition:

§ 214-A. Action for medical, dental or podiatric malpractice to be commenced within two years and six months; exceptions

An action for medical, dental or podiatric 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; provided, however, that:

(a) where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and

(b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the later of either (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission, or (ii) the date of the last treatment where there is continuous treatment for such injury, illness or condition. For the purpose of this section the term "continuous treatment" shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient's condition. For the purpose of this section the term "foreign object" shall not include a chemical compound, fixation device or prosthetic aid or device.

In McDermott v. Torre, 452 N.Y.S.2d 351, 56 N.Y.2d 399 (N.Y. 1982), the New York Court of Appeals explained that continuous treatment serves simply as a toll; the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (at 354-355):

Assuming that continuous treatment did occur in the present case, the appropriate Statute of Limitations must be determined. The initial misdiagnosis occurred in May, 1974, at which time the period for bringing a medical malpractice action was three years (see CPLR 214, subd. 6). Effective July 1, 1975, while plaintiff's treatment was continuing, the period was reduced to two and one-half years (see CPLR 214-a, added L.1975, ch. 109, § 6). If section 214-a governs, then plaintiff's action is timebarred, more than 32 months having elapsed between plaintiff's last visit and service of summons.

Resolution of this question depends on whether the continuous treatment doctrine delays the action's accrual or only tolls the running of the Statute of Limitations. If the former, then plaintiff's action is barred. Although the cases speak of the doctrine in terms of when the action "accrues" (see, e.g., Greene v. Greene, 56 N.Y.2d 86, 93-95, 451 N.Y.S.2d 46, 436 N.E.2d 496; Davis v. City of New York, 38 N.Y.2d 257, 259, 379 N.Y.S.2d 721, 342 N.E.2d 516, supra; Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777, supra ), that term in this context is not strictly accurate. Section 214-a speaks to computing the limitation period in terms of "the act, omission or failure complained of", not of the entire course of treatment. And, there is a certain illogic in stating that no action is ripe--i.e., it does not "accrue"--until after treatment ends. Continuous treatment has nothing to do with the initial act of negligence. While such treatment itself may be negligent, that would give rise to a different cause of action and would not actually affect the original "act, omission, or failure

Page 355

complained of". Rather than define the action's accrual in terms of the doctrine, it is defined in terms of when the original negligent act occurred. Continuous treatment serves simply as a toll--the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (see Borgia v. City of New York, supra).

In Daniel J. by Ann Mary J. v. New York City Health and Hospitals Corp., 569 N.Y.S.2d 396, 571 N.E.2d 704, 77 N.Y.2d 630 (N.Y. 1991), the New York Court of Appeals explained that an action in medical malpractice "accrues" at the date of the original negligent act or omission; subsequent continuous treatment does not change or extend the accrual date but serves only to toll the running of the applicable statute of limitations (at 398-399):

Petitioner contends that the action accrued at the end of Daniel J.'s continuous treatment on March 15, 1979 and that the 10-year statutory toll for infancy began to run at that time. She maintains, therefore, that the Supreme Court had discretion to allow filing of the service of a late notice of claim on December 12, 1988 (see, General Municipal Law § 50-e[5]. An action in medical malpractice "accrues" at the date of the original negligent act or omission, however; subsequent continuous treatment does not change or extend the accrual date but serves only to toll the running of the applicable Statute of Limitations (McDermott v. Torre, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108; see also, Rizk v. Cohen, 73 N.Y.2d 98, 103, 538 N.Y.S.2d 229, 535 N.E.2d 282; Suria v. Shiffman, 67 N.Y.2d 87, 95, 499 N.Y.S.2d 913, 490 N.E.2d 832). Petitioner's claim, based on the initial failure to diagnose an undescended testicle problem at birth and the loss of the right testicle, accrued no later than December 4, 1978. Inasmuch as a medical malpractice must be commenced within 10 years from the date of accrual under CPLR 208, the period of limitations expired on December 4, 1988 and the courts below erred in granting leave to serve a late notice of claim (General Municipal Law § 50-e[5].

Petitioner acknowledges the McDermott rule but notes that at the time CPLR 208 was enacted the cause of action in [77 N.Y.2d 635] continuous treatment actions accrued at the end of the treatment, not the beginning (see, Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777). She contends that rule should be applied here and that when it is applied, the 10-year infancy toll under CPLR 208 did not begin to run until the end of Daniel J.'s continuous treatment.

Page 399

[571 N.E.2d 707] In Borgia v. City of New York (supra), we stated that in continuous treatment cases the cause of action accrued at the conclusion of treatment. It appears from the legislative history that in explaining the proposed amendment of the infancy toll the sponsor used our decision to illustrate how the 10-year provision would operate. There is no indication that the reference was intended as other than illustrative, however. The sponsor's memorandum did not suggest tacking the infancy toll onto any continuous treatment toll; it noted only that the infancy toll would run from the "accrual" of the cause of action and referred to the definition of accrual under existing law (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777, supra). Nor did the Legislature otherwise manifest any intention to codify the Borgia definition of accrual in CPLR 208 or limit this Court's consideration of the Borgia rule. Indeed, the accrual date fixed in McDermott is consistent with the primary purpose of the bill, "to assure prompt disposition of medical malpractice claims" (Bill Jacket, L.1975, ch. 109, Governor's Program Bill Mem., at 1). To apply the Borgia definition of accrual to CPLR 208 now would perpetuate the illogical consequences of the rule we corrected in McDermott, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108, supra and create an unwarranted exception for accrual applicable only to infants' claims.

Accordingly, the order of the Appellate Division should be reversed, with costs, and petitioner's application to serve a late notice of claim denied.

In Massie v. Crawford, 577 N.Y.S.2d 223, 583 N.E.2d 935, 78 N.Y.2d 516 (N.Y. 1991), the New York Court of Appeals explained that an interval of more than two years and six months between visits to a medical professional is not per se dispositive of a defendant's claim that the statute has run. Rather, the burden shifts to the plaintiff to establish that their examinations constituted "continuous treatment" and that the tolling exception was applicable (at 519):

Defendant established that more than two years and six months had elapsed between January 1984 and plaintiff's last previous visit, in March 1981. That interval between visits is not per se dispositive of defendant's claim that the statute has run, but because of it the burden shifted to plaintiff to establish that her examinations constituted "continuous treatment" and that the tolling exception was applicable (Rizk v. Cohen, 73 N.Y.2d 98, 538 N.Y.S.2d 229, 535 N.E.2d 282; and see, Werner v. Kwee, 148 A.D.2d 701, 702, 539 N.Y.S.2d 449; Valenti v. Trunfio, 118 A.D.2d 480, 483, 499 N.Y.S.2d 955; Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379, 380, 453 N.Y.S.2d 444).

The Court explained that "continuous treatment" involves more than a physician-patient relationship. There must be ongoing treatment of a medical condition. The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor's skill because to sue while undergoing treatment necessarily interrupts the course of treatment. A patient is not entitled to the benefit of the toll in the absence of continuing efforts by the doctor to treat a particular condition because the policy reasons underlying the continuous treatment doctrine do not justify the patient's delay in bringing suit in such circumstances. Continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have their condition checked. Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not a course of treatment (at 519-520):

We have held that "continuous treatment" involves more than a physician-patient relationship (McDermott v. Torre, supra, 56 N.Y.2d at 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108; Borgia v. City of New York, supra, 12 N.Y.2d at 157, 237 N.Y.S.2d 319, 187 N.E.2d 777). There must be ongoing treatment of a medical condition. The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a

Page 225

disadvantage in questioning the doctor's skill because to sue while undergoing treatment necessarily interrupts the course of treatment. "It would be absurd", we stated, "to require a wronged patient to interrupt corrective efforts by serving a summons on the physician" under those circumstances (Borgia v. City of New York, supra, at 156, 237 N.Y.S.2d 319 [emphasis added]. A patient is not entitled to the benefit of the toll in the absence of continuing efforts by a doctor to treat a particular condition because the policy reasons underlying the continuous treatment doctrine do not justify the patient's delay in bringing suit in such circumstances (Nykorchuck v. Henriques, supra, 78 N.Y.2d at 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026; see also, Grellet v. City of New York, 118 A.D.2d 141, 147-148, 504 N.Y.S.2d 671). Thus, we [78 N.Y.2d 520] have emphasized that continuous treatment "does not contemplate circumstances where a patient initiates return visits merely to have * * * her condition checked" (McDermott v. Torre, supra, 56 N.Y.2d at 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108). Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not "a [583 N.E.2d 938] course of treatment" (Charalambakis v. City of New York, 46 N.Y.2d 785, 787, 413 N.Y.S.2d 912, 386 N.E.2d 823; see also, Nykorchuck v. Henriques, supra; Davis v. City of New York, 38 N.Y.2d 257, 379 N.Y.S.2d 721, 342 N.E.2d 516).

In this case, the New York Court of Appeals held that the continuous treatment doctrine was not applicable. The Court noted that the single procedure that the defendant performed for the plaintiff was the insertion of an IUD. The plaintiff's subsequent visits to the defendant were for routine gynecological examinations, not therapy to correct a medical condition. Consequently, these visits may not serve as a basis for applying the continuous treatment exception because the plaintiff could have interrupted the services and switched physicians at any time without jeopardizing her health (at 520-521):

The present action does not come within the exception. The single procedure defendant performed for plaintiff was the insertion of the IUD; her subsequent visits to him were for routine gynecological examinations, not therapy to correct a medical condition. Consequently, these visits may not serve as a basis for applying the continuous treatment exception because plaintiff could have interrupted the services and switched physicians at any time without jeopardizing her health.

The point is illustrated by the dissent's hypothetical in support of its position that a patient visiting a physician for checkups following surgery is undergoing continuous treatment (see, dissenting opn., at p. 521, at p. 225 of 577 N.Y.S.2d, at p. 942 of 583 N.E.2d). Manifestly, there is continuing treatment involved in overseeing a patient's recovery following surgery. Assuming visits for that purpose could legitimately last more than the statutory period, the patient could not reasonably be expected to terminate aftercare and sue for malpractice while the physician was still checking the wounds and monitoring the healing process. Here, by contrast, the dissenters would extend the exception to cover a relationship over 15 years, and conceivably for the remainder of the patient's life, when there was no treatment to continue and the plaintiff would jeopardize nothing by instituting suit at any time if she believed defendant guilty of malpractice.

In Chestnut v. Bobb–McKoy, 2012 N.Y. Slip Op. 03267, 94 A.D.3d 659, 943 N.Y.S.2d 461 (N.Y. App. Div. 2012), the New York Appellate Division, First Department, explained that (at 660):

The continuous treatment doctrine tolls the 2 1/2–year limitations period for medical malpractice actions 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; Nykorchuck, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026; McDermott v. Torre, 56 N.Y.2d 399, 407, 452 N.Y.S.2d 351, 437 N.E.2d 1108 [1982] ). “The premise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatment to bring a lawsuit, because the doctor not only is in a position to identify and correct the malpractice, but also is best placed to do so” (Cooper v. Kaplan, 78 N.Y.2d 1103, 1104, 578 N.Y.S.2d 124, 585 N.E.2d 373 [1991]; see also Ganess v. City of New York, 85 N.Y.2d 733, 628 N.Y.S.2d 242, 651 N.E.2d 1261 [1995] ). In the absence of continuing

[943 N.Y.S.2d 463]

efforts by a doctor to treat a particular condition or complaint, however, those policy reasons do not justify the patient's delay in bringing suit (Cooper, at 1104, 578 N.Y.S.2d 124, 585 N.E.2d 373; Allende v. New York City Health Hosps. Corp., 90 N.Y.2d 333, 660 N.Y.S.2d 695, 683 N.E.2d 317 [1997] ).

With respect to failure to diagnose cases, the Court explained that (at 660-661):

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 [94 A.D.3d 661] ” (Hein v. Cornwall Hosp., 302 A.D.2d 170, 174, 753 N.Y.S.2d 71 [2003]; Dellert v. Kramer, 280 A.D.2d 438, 721 N.Y.S.2d 342 [2001]). Thus, a physician or hospital cannot escape liability under the continuous treatment doctrine merely because of a failure to make a correct diagnosis as to the underlying condition, where it treated the patient continuously over the relevant time period for symptoms that are ultimately traced to that condition (Hill v. Manhattan W. Med. Group–H.I.P., 242 A.D.2d 255, 661 N.Y.S.2d 229 [1997]; see e.g. Shifrina v. City Of New York, 5 A.D.3d 660, 774 N.Y.S.2d 85 [2004]).

In Gordon v. Magun, 612 N.Y.S.2d 373, 634 N.E.2d 974, 83 N.Y.2d 881 (N.Y. 1994), the plaintiff invoked the continuous treatment doctrine to toll the statute of limitations alleging, among other things, that the defendant negligently failed to diagnose cancer during the initial consultations. The New York Court of Appeals concluded that the continuous treatment doctrine was inapplicable. The Court explained that the decedent's first consultation was undertaken for a purpose wholly independent of the second and involved neither ongoing provision of services by the defendant nor the expectation of any future contact between the patient and physician after discharge from the hospital (at 883):

More than two years after the November examination, plaintiff commenced this action alleging, among other things, that defendant negligently failed to diagnose the cancer during the initial consultations in January and February. To avoid dismissal of the medical malpractice claims under the 2 1/2-year Statute of Limitations (CPLR 214-a), plaintiff contends that decedent's visits to defendant constituted a single course of treatment, thereby invoking the continuous treatment doctrine to toll the Statute of Limitations.

We conclude that the continuous treatment doctrine is inapplicable under these circumstances. The consultations here were not part of "continuing efforts by a doctor to treat a particular condition" (Massie v. Crawford, 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935). The first consultation was undertaken for a purpose wholly independent of the second and involved neither ongoing provision of services by defendant nor the expectation of any future contact between the patient and physician after discharge from the hospital (see, Davis v. City of New York, 38 N.Y.2d 257, 259, 379 N.Y.S.2d 721, 342 N.E.2d 516; compare, McDermott v. Torre, 56 N.Y.2d 399, 406, 452 N.Y.S.2d 351, 437 N.E.2d 1108). The fact that the condition allegedly overlooked in the first consultations was the condition ultimately diagnosed in the later consultation does not bring this case within the continuous treatment doctrine even if a correct diagnosis would have led to an ongoing course of treatment (see, Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026).

Pursuant to N.Y. C.P.L.R. § 208(a), if a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues and the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues:

§ 208. Infancy, insanity

(a) If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, or the person under the disability dies, the time within which the action must be commenced shall be extended to three years after the disability ceases or the person under the disability dies, whichever event first occurs; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy. This section shall not apply to an action to recover a penalty or forfeiture, or against a sheriff or other officer for an escape.

(b) Notwithstanding any provision of law which imposes a period of limitation to the contrary and the provisions of any other law pertaining to the filing of a notice of claim or a notice of intention to file a claim as a condition precedent to commencement of an action or special proceeding, with respect to all civil claims or causes of action brought by any person for physical, psychological or other injury or condition suffered by such person as a result of conduct which would constitute a sexual offense as defined in article one hundred thirty of the penal law committed against such person who was less than eighteen years of age, incest as defined in section 255.27, 255.26 or 255.25 of the penal law committed against such person who was less than eighteen years of age, or the use of such person in a sexual performance as defined in section 263.05 of the penal law, or a predecessor statute that prohibited such conduct at the time of the act, which conduct was committed against such person who was less than eighteen years of age, such action may be commenced, against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of said conduct, on or before the plaintiff or infant plaintiff reaches the age of fifty-five years. In any such claim or action, in addition to any other defense and affirmative defense that may be available in accordance with law, rule or the common law, to the extent that the acts alleged in such action are of the type described in subdivision one of section 130.30 of the penal law or subdivision one of section 130.45 of the penal law, the affirmative defenses set forth, respectively, in the closing paragraph of such sections of the penal law shall apply.

In Rivera v. Brookdale Hosp. Medical Ctr., 205 A.D.2d 677, 613 N.Y.S.2d 645, 1994 N.Y. App. Div. LEXIS 6447 (N.Y. App. Div. 2d Dep't June 20, 1994), New York Appellate Division, Second Department, explained that the maximum 10-year infancy toll is measured not from the end of a period of continuous treatment, but from the accrual of the cause of action (at 677-678):

The appellant moved for summary judgment dismissing the complaint, arguing, in reliance on Matter of Daniel J. v New York City Health & Hosps. Corp. (77 NY2d 630), that the maximum 10-year toll of the Statute of Limitations for infancy (see, CPLR 208) runs from the time the cause of action accrues, rather than at the end of a period of continuous treatment (see, CPLR 214-a). The Supreme Court denied the motion in its entirety.

While we agree with the appellant's argument that the Supreme Court erred, we do not agree that the entire complaint must be dismissed. The appellant is correct that HN1 the  [*678]  maximum 10-year infancy toll is measured not from the end of a period of continuous treatment, but from the accrual of the cause of action (see, Matter of Daniel J. v New York City Health & Hosps. Corp., supraSergile v New York City Health & Hosps. Corp., 175 AD2d 119). The complaint and bill of particulars indicate, however, that the action is based on various acts of malpractice occurring between May 21, 1976, and January 23,  [***3]  1982. Because HN2 each act of negligence is a separate basis for recovery (see, McDermott v Torre, 56 NY2d 399, 407), the action is timely with regard to any act occurring within the 10-year period prior to the commencement of the action (Ann Mary J. v New York City Health & Hosps. Corp., 204 AD2d 690). Therefore, only causes of action based upon acts occurring prior to July 5, 1980, are time barred.

Authorities:
N.Y. C.P.L.R. § 214-A (2022)
McDermott v. Torre, 452 N.Y.S.2d 351, 56 N.Y.2d 399 (N.Y. 1982)
Daniel J. by Ann Mary J. v. New York City Health and Hospitals Corp., 569 N.Y.S.2d 396, 571 N.E.2d 704, 77 N.Y.2d 630 (N.Y. 1991)
Massie v. Crawford, 577 N.Y.S.2d 223, 583 N.E.2d 935, 78 N.Y.2d 516 (N.Y. 1991)
Chestnut v. Bobb–McKoy, 2012 N.Y. Slip Op. 03267, 94 A.D.3d 659, 943 N.Y.S.2d 461 (N.Y. App. Div. 2012)
Gordon v. Magun, 612 N.Y.S.2d 373, 634 N.E.2d 974, 83 N.Y.2d 881 (N.Y. 1994)
N.Y. C.P.L.R. § 208 (2022)
Rivera v. Brookdale Hosp. Medical Ctr., 205 A.D.2d 677, 613 N.Y.S.2d 645, 1994 N.Y. App. Div. LEXIS 6447 (N.Y. App. Div. 2d Dep't June 20, 1994)