dissents and votes to reverse the order appealed from, on the law, and deny the motion and grant the cross motion, with the following memorandum: Contrary to the conclusion of the majority, and that of the Supreme Court, I find that the plaintiffs notice of claim was timely filed when the applicable toll for continuing treatment is considered. The plaintiff was born at Elmhurst General Hospital on August 6, *7701973. Allegedly as a result of medical malpractice during his birth, the plaintiff was found to be affected with a medical condition known as left Erbs Palsy. The evidence adduced in opposition to the HHC’s motion to dismiss indicated that the plaintiff was repeatedly treated at Elmhurst General Hospital for this Erbs Palsy condition through 1986. The plaintiff’s notice of claim was filed on May 18, 1984, and the action was commenced in December 1984, while the course of continuous treatment provided by Elmhurst General Hospital was ongoing.
The Supreme Court granted the HHC’s motion to dismiss because, in its opinion, the plaintiff’s condition was deemed to be permanent as of 1977 and any treatments provided thereafter were ameliorative rather than curative. The majority adopts that reasoning. Furthermore, determining that the rationale underlying the continuous treatment doctrine was to promote the continuation of the physician-patient relationship to work on a cure without interruption by a lawsuit, the Supreme Court held that the commencement of this suit by the plaintiff undermined the rationale of, and hence the need for, the continuous treatment doctrine. Stated simply, since the treatments received by the plaintiff would not lead to a cure, but were more in the nature of "checkups” of the plaintiff’s "overall condition”, the court concluded that the continuing examinations were not for the "same condition” caused by the alleged malpractice, and hence, did not constitute genuine continuous treatment resulting in a toll of the Statute of Limitations (see, Werner v Kwee, 148 AD2d 701). The majority implicitly adopts this conclusion as well. I disagree.
The fact of the matter is that the plaintiff, allegedly injured at birth, continued to seek treatment for this left Erbs Palsy at the HHC’s hospital through 1986. The last medical report in the record on appeal indicates that the plaintiff was seen in September 1983 and was to return in one year. However, according to the uncontroverted affidavit of the plaintiff’s father, the plaintiff was treated at the defendant’s hospital through 1986. In 1984 the plaintiff reportedly saw an orthopedist who recommended surgical treatment. The plaintiff’s mother also testified at a General Municipal Law § 50-h hearing in December 1984 that the plaintiff was still undergoing treatment at Elmhurst General Hospital under the care of Dr. Kaplan as well as other hospital physicians. She testified that the plaintiff was scheduled for an appointment in April 1985. Thus, the plaintiff’s mother testified as to future ap*771pointments, which according to the plaintiff’s father’s affidavit, were in fact appointments actually kept. The plaintiff’s medical expert stated, after reviewing the plaintiff’s medical records, that the plaintiff’s continuing treatment at the HHC’s hospital was "a continuous course of treatment * * * for his [E]rb’s [P]alsy and sequelae which include [sic] physical therapy, monitoring left arm flexion and contracture, and checking for scoliosis and the necessity for surgery”. Clearly, this meets the definition of continuous treatment and constitutes more than just a routine examination.
The Court of Appeals has unequivocally held: "The 'continuing trust and confidence’ which underlies the 'continuous treatment doctrine’ (Coyne v Bersani, 61 NY2d 939, 940) does not necessarily come to an end upon a patient’s last personal visit with his or her physician (see, McDermott v Torre, 56 NY2d 399, 406), when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, in conformance with the periodic appointments which characterized the treatment in the immediate past. (Compare, Davis v City of New York, 38 NY2d 257.) Thus, a patient remains under the 'continuous treatment or care’ of a physician between the time of the last visit and the next scheduled one where the latter’s purpose is to administer ongoing corrective efforts for the same or a related condition. Regardless of the absence of physical or personal contact between them in the interim, where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitations is certainly satisfied.” (Richardson v Orentreich, 64 NY2d 896, 898-899.)
As the affidavit of the plaintiff’s expert made clear, the plaintiff was treated at the HHC’s hospital over an extended period through 1986, to correct the very condition that resulted from the HHC’s alleged negligence. Although the HHC’s expert, Dr. Kaplan, averred that she merely checked the plaintiffs condition in November 1979, and in August 1983, Dr. Kaplan could offer no relevant evidence whatsoever regarding the numerous other treatments on other dates provided by other physicians at the HHC’s hospital, as testified to by the plaintiffs mother. In light of the HHC’s failure to offer comprehensive proof as to the treatments the plaintiff did or did not receive throughout the entire course of treat*772ment, not only was it error for the court to conclude that the treatments received were for a different condition so as to preclude application of a continuous treatment toll, but the plaintiff’s cross motion should have been granted since the plaintiff’s evidence established the applicability of the continuous treatment toll as a matter of law.
I do not share the majority’s view that the plaintiff received merely routine examinations to monitor his condition. Rather, the record supports the conclusion that ongoing medical treatments were being undertaken to improve the plaintiff’s condition, by exercise and by surgery, if necessary. Furthermore, post-operative, diagnostic, or therapeutic treatments do constitute continuous treatment where the care provided is for the condition resulting from the alleged malpractice (see, Fonda v Paulsen, 46 AD2d 540).
It is beyond cavil that continuous treatment tolls the expiration of an otherwise applicable Statute of Limitations " '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’ ” (McDermott v Torre, 56 NY2d 399, 405). The Supreme Court’s reasoning, embellished by the majority, would preclude the application of this tolling doctrine in virtually every case presenting birth-related injuries that prove to be "incurable”. However, whether a treatment focuses on a cure or on merely attempting to ameliorate the symptoms of a permanent condition is not the determinative factor as to whether the treatment is "continuous” and thus tolls the running of the statute. The Supreme Court’s conclusion, and that of the majority, ignores the settled rule that the continuous treatment doctrine applies so long as there is a continuing relationship of trust and confidence between patient and physician (see, Richardson v Orentreich, 64 NY2d 896, supra; Allen v Blum, 196 AD2d 624). Such a relationship clearly continued in this case. Contrary to the majority’s implicit conclusion, the mere filing of a notice of claim during the course of ongoing continuous treatment does not negate the continuing treatment toll for treatments following service of the notice of claim (see, Petrushansky v New York City Health & Hosps. Corp., 102 AD2d 819).
As previously stated, since the plaintiff was under the continuous care of physicians at Elmhurst General Hospital for ongoing corrective efforts for his Erb’s Palsy, the continuing treatment doctrine applies to this case to toll the running of the Statute of Limitations (see, Richardson v Orentreich, 64 NY2d 896, supra). Not only does the majority implicitly reject *773the holding of Petrushansky (supra), it further ignores a second rationale supporting the application of the toll for continuous treatment. It enables a physician to continue to attempt to correct the past malpractice (see, Barrella v Richmond Mem. Hosp., 88 AD2d 379, 383). If a patient and a health care provider both consent to continued curative efforts notwithstanding the commencement of a lawsuit, that is undeniably within the parties’ prerogatives.
Moreover, the majority’s position ignores the reality that numerous residents of the metropolitan area have no source of primary health care available to them other than that provided by municipal hospitals. That patients may continue to seek care from the very institution charged with malpractice is not surprising in this light nor should such patients be deprived of the benefit of the continuous treatment toll strictly as a result of their limited health care options. In short, the plaintiff continued to be treated by the HHC’s hospital beyond the time he served his notice of claim and as a result the Statute of Limitations was thereby tolled (see, Djordjevic v Wickham, 200 AD2d 421; cf., Massie v Crawford, 78 NY2d 516; Cassara v Larchmont-Mamaroneck Eye Care Group, 194 AD2d 708).