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FRANKIE J. SHUMWAY, Indi v. dually and as Administratrix of the Estate of GILBERT C. SHUMWAY, Deceased, Respondent,

Order unanimously affirmed with costs. Memorandum: Although the Second Department has held that a gap in treatment that exceeds the 2 1/2-year period of limitations (see, CPLR 214-a) bars the application of the continuous course of treatment doctrine as a matter of law (see, Curcio v Ippolito, 97 A.D.2d 497, affd 63 N.Y.2d 967; Barrella v Richmond Mem. Hosp., 88 A.D.2d 379; Bennin v Ramapo Gen. Hosp., 72 A.D.2d 736), the Court of Appeals found it unnecessary to adopt that holding (see, Curcio v Ippolito, 63 N.Y.2d 967, 969, supra). We decline to adopt such rule in this department. Instead, we adhere to the principle that "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 N.Y.2d 896, 899). Upon application of that principle, plaintiff's averments are sufficient to raise questions of fact. Thus, Supreme Court properly denied defendant's motion for summary judgment.

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SHUMWAY v. DeLAUS
(Jul 12, 1989)