Opinion
November 19, 1984
Appeal from the Supreme Court, Nassau County (Becker, J.).
Order reversed, insofar as appealed from, on the law, with costs, motion for summary judgment dismissing the action as against appellant granted, action dismissed as against it, and the action against the remaining defendant severed.
At the latest, the cause of action asserted against defendant Lydia Hall Hospital accrued on August 28, 1974, the date that the plaintiffs' decedent was discharged. Thus, unless there was a toll, the Statute of Limitations expired on August 28, 1977, under the three-year period of limitations in effect for causes of action accruing prior to July 1, 1975, and this action, commenced after that date, is time barred.
Plaintiffs urge that since defendant William Lannick continued the treatment after the decedent's discharge and since the decedent consulted with the director of urology at the hospital following his discharge, there is an issue of fact presented under the continuous treatment rule ( Borgia v City of New York, 12 N.Y.2d 151). We disagree.
The subsequent treatments and examinations were not undertaken in connection with a course of treatment ordered by or under the control of the hospital ( McDermott v Torre, 56 N.Y.2d 399; Davis v City of New York, 38 N.Y.2d 257, Kimball v Scors, 59 A.D.2d 984, mot for lv to app den. 43 N.Y.2d 648). Plaintiffs bore the burden. of establishing a nexus between the subsequent events and the prior hospitalization ( Connell v Hayden, 83 A.D.2d 30, 39) and, on the record before us, have failed to establish a triable issue of fact which would bring the cause of action within the ambit of the continuous treatment rule (see Ruane v Niagara Falls Mem. Med. Center, 91 A.D.2d 1176, aff'd. 60 N.Y.2d 908; Florio v Cook, 65 A.D.2d 548; Kimball v Scors, supra). Fonda v Paulsen ( 46 A.D.2d 540), to the extent it survives McDermott v Torre ( supra), is plainly distinguishable. Accordingly, defendant Lydia Hall Hospital's motion for summary judgment should have been granted as against it. Mollen, P.J., Titone, Thompson and Weinstein, JJ., concur.