dissent in a memorandum by Fein, J., as follows: I respectfully dissent for the reasons stated by Justice Leonard N. Cohen, and would merely add the following. As Justice Cohen stated in his careful opinion, "The continuing treatment of a physician may be imputed to a laboratory and thus presumably to its pathologists and to the hospital which employs the pathologists, so long as there is an agency relationship with the patient’s doctor or other relevant relationship such as reliance on the laboratory by the patient’s doctor (See McDermott v. Torre, 56 NY2d 399; Fonda v. Paulsen, 46 AD2d 540 [3rd Dept. 1975]). The only facts revealed in these papers [are] that Dr. Mishrick apparently had admitting and operating privileges at the Hospital. But full discovery has not been had as to such issues. Thus, summary judgment of the malpractice claims on the ground of the expiration of the statute of limitations is inappropriate and premature at this juncture.” Accordingly, Special Term denied summary judgment, without prejudice to renewal following completion of discovery. We should follow that determination.
As the majority indicates, we are all agreed that an issue of fact exists concerning the applicability of the continuous *331treatment doctrine with respect to Dr. Mishrick. However, plaintiff must be afforded an opportunity by full discovery, presently stayed by the motions for summary judgment (CPLR 3214 [b]), to ascertain the relationship among Dr. Mishrick, the hospital, and Dr. Tagliamonti, the pathologist employed by the hospital.
It is undisputed that Dr. Tagliamonti reported that "[n]o malignant cells are identified in the sections examined.” He concluded that the tissue was a "compound nevus”. It is equally undisputed that some four years later, the original tissue slide read by Dr. Tagliamonti was examined by a doctor at Sloan Kettering who reported that it contained a "[mjalignant melanoma measuring 1.5 mm thick.” This doctor further noted: "This young lady had what was thought to be benign nevus biopsied about 6 years ago and subsequent review has revealed it to be a level 4, 1.5 mm melanoma.”
It is thus plain that a cause of action for malpractice is stated against Dr. Tagliamonti and St. Francis Hospital, which employed him. The only bar is the Statute of Limitations, which could be overcome, as the majority concedes, if Dr. Mishrick’s continuing treatment, if any, can be imputed to Dr. Tagliamonti and the hospital.
The majority concludes that the record is "barren of any facts suggestive of a relationship between the decedent and Dr. Tagliamonti after January 28, 1977, or of any agency relationship between Dr. Tagliamonti and Dr. Mishrick before or after that date.” To the extent that the record is barren of facts concerning these relationships, it is because of the absence of discovery, precluded by the motions for summary judgment. To grant summary judgment now is to bar the door against discovery of the facts.
Summary judgment is the equivalent of a trial. It effectively "deprives a party of his day in court” (Ugarriza v Schmieder, 46 NY2d 471, 474). It is only to be employed where it is plain that there are no issues of fact. The function of summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Robinson v Strong Mem. Hosp., 98 AD2d 976; Renda v Frazer, 75 AD2d 490). The facts can only be determined through discovery, which has not yet taken place. (Winegrad v New York Univ. Med. Center, 64 NY2d 851, on remittitur 111 AD2d 138.)
Despite the apparent finding to the contrary by the majority, it is clear that at the time of the biopsy in 1977, Dr. Mishrick had privileges at St. Francis Hospital. He conducted *332his examination of the patient there and performed the first operation there. Dr. Tagliamonti did the examination of the tissue slide there. Thus, at least at that time, there is evidence of a relationship among the two doctors and the hospital. How long that relationship continued is the question at issue, which discovery may reveal. It appears that Dr. Mishrick is still on the attending staff at that hospital. Dr. Tagliamonti’s carefully drawn affidavit states that he is still employed as a pathologist at the hospital. Although he denies that he ever treated plaintiff or had any personal contact with her, he admits to having examined the tissues. However, he says nothing about any contact with Dr. Mishrick, then or at any other time. On this issue Dr. Mishrick’s affidavit is equally uninformative.
By granting summary judgment to the doctor and the hospital, the majority has determined the issue against the plaintiff without an opportunity to discover the facts (City Univ. v Finalco, Inc., 93 AD2d 792). Their reliance on McDermott v Torre (supra) assumes a fact not yet determined in this action. As was stated in McDermott (56 NY2d, at p 403), "The continuing treatment by the physician, however, cannot be imputed to an independent laboratory in the absence of an agency or other relevant relationship between the laboratory and doctor or some relevant continuing relation between the laboratory and the patient.” In that case it was undisputed that the diagnosis was made by an independent laboratory.
It is doubtful that we are dealing here with an independent laboratory, as in McDermott (supra), but rather with a hospital and its pathology department, as appears to have been the case in Fonda v Paulsen (supra), where evidence of a continuing relationship was found. It also appears that the original tissue specimens were maintained within the hospital and not furnished to Dr. Mishrick, who might have recognized the error in diagnosis. Hence, the very rationale of McDermott suggests that further discovery is required. If, indeed, the test is an opportunity to discover errors, it was the hospital and the pathologist who had that opportunity since the specimens were accessible to them. Whether there was consultation between the two doctors does not appear. Neither denies that there was consultation. Plaintiff would not know whether it occurred.
The issue of Dr. Tagliamonti’s and St. Francis Hospital’s "constructive participation” in Dr. Mishrick’s treatment of plaintiff should not be determined on this barren record. There is sufficient evidence in the record at this point that Dr. *333Mishrick relied upon Dr. Tagliamonti’s alleged misdiagnosis by reason of which the patient was not treated for her cancer for four years (see, Fonda v Paulsen, supra). Dr. Mishrick allegedly had frequently reassured the recently deceased plaintiff that the tissue removed in 1977 was nonmalignant. Whether this reassurance was premised upon the original report or whether there was a continuing consultation does not appear. These issues can be explored by the discovery which is presently foreclosed by the motion for summary judgment (CPLR 3214 [b]).
Only the doctors have the evidence which is now wanting. Faulting plaintiff for failing to furnish such information, the majority has now locked the courthouse door against her proper efforts to obtain it by discovery. This is not the function of summary judgment.
We should not rush to judgment. There will be time enough for an appropriate motion for summary judgment after discovery, if facts are developed in accordance with the majority’s premature findings.