I agree with the majority that fundamental to the continuous treatment doctrine is a course of treatment established with respect to the medical condition that gave rise to the underlying medical malpractice claim. I respectfully disagree with the majority’s determination that, as a matter of law, plaintiffs visits prior to the filing of the notice of claim were of a routine nature and not related to plaintiffs medical condition at issue. I submit that a review of the medical records proffered on this appeal, particularly those regarding plaintiff’s visits on October 24, 1989, December 8, 1989 and September 19, 1990, are sufficient to raise factual issues as to whether these visits dealt with plaintiff’s alleged birth-related injuries, thus precluding summary relief. Specific references to the slow, involuntary movement of plaintiff’s left extremities, his need for speech, hearing and occupational therapies and his cerebral palsy demonstrate issues, at the very least, as to whether New York City Health and Hospitals Corporation (HHC) was continually monitoring and assessing the nature, extent and progression of the very injuries at issue during these “routine” visits. Accordingly, I would affirm the IAS court’s denial of HHC’s motion for summary judgment.
Nardelli, J.P., and Williams, J., concur with Tom, J.; Lerner, J., dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered April 10, 2001, reversed, on the law, without costs, and defendant’s motion to dismiss the complaint granted. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint as against it.