
    John Borgia, an Infant, by Nicholas Borgia, His Guardian ad Litem, et al., Appellants, v. City of New York, Respondent, et al., Defendant.
    Argued October 2, 1962;
    decided December 31, 1962.
    
      
      Irving A. Scheinberg, Harold D. Kosupsky and David G. Lubell for appellants.
    I. The notice of claim was timely served and the claim arose at the time of infant plaintiff’s discharge from defendant’s hospital. The Appellate Division’s contention that the period commenced 1 ‘ on the date of the last act of malpractice, and not on the date upon which treatment ceased,” violates justice and the rule of law intended to protect the innocent against the wrongdoer. (Barry v. Village of Port Jervis, 64 App. Div. 268; Hammer v. Rosen, 7 N Y 2d 376; Conklin v. Draper, 254 N. Y. 620; Ranalli v. Breed, 277 N. Y. 630; Sly v. Van Lengen, 120 Misc. 420; Nervick v. Fine, 195 Misc. 464, 275 App. Div. 1043; Adams v. Berlinghof, 14 A D 2d 654; Budoff v. Kessler, 284 App. Div. 1049; Rokita v. Germaine, 12 Misc 2d 84, 8 A D 2d 620; Golia v. Health Ins. Plan of Greater N. Y., 7 Misc 2d 919, 6 A D 2d 884, 7 N Y 2d 931; Huysman v. Kirsch, 6 Cal. 2d 302; De Haan v. Winter, 258 Mich. 293; Williams v. Elias, 140 Neb. 656; Gillette v. Tucker, 67 Ohio St. 106.) II. The Supreme Court erred in granting defendant’s motion to amend its answer and the Appellate Division erred in dismissing the appeal from the order granting the motion to amend the answer to plead the affirmative defense of late filing of the notice of claim. Section 580 of the Civil Practice Act grants plaintiff the right to appeal from and obtain a review of an intermediate order upon the appeal from the final judgment, regardless of whether said final judgment was in favor of plaintiff. (Matter of Martin v. School Bd. of Union Free Dist. No. 28, 301 N. Y. 233; Cohen v. Cohen, 3 N Y 2d 339.) III. The unreasonable delay by defendant of two years before moving to amend its answer, prejudicing plaintiff’s rights, required that the motion to amend should have been denied. (Shrubsall v. City of New York, 183 Misc. 424; Massi v. Alben Bldrs., 270 App. Div. 482, 296 N. Y. 767.) IV. In any event defendant by reason of its unequivocal acts and conduct is estopped from claiming plaintiff is barred from recovery because of the filing of an alleged late notice of claim. (Teresta v. City of New York, 304 N. Y. 440; Sweeney v. City of New York, 225 N. Y. 271; Hamilton v. City of Buffalo, 55 App. Div. 423, 173 N. Y. 73.) V. The jury verdict in favor of infant plaintiff and his father was reasonable and not excessive. The verdict of $45,000 for the father should be reinstated upon the reversal of the judgment and order of the Appellate Division. (Filer v. New York Cent. R. R. Co., 49 N. Y. 42; Ransom v. New York & Erie R. R. Co., 15 N. Y. 415; Griswold v. New York Cent, & H. R. R. R. Co., 115 N. Y. 61; Cuming v. Brooklyn City R. R. Co., 109 N. Y. 95; Capasso v. Square Sanitarium, 3 Misc 2d 273; Feeney v. Long Is. R. R. Co., 116 N. Y. 375.)
    
      Leo A. Larkin, Corporation Counsel {Alfred Weinstein and Seymour B. Quel of counsel), for respondent.
    I. The intermediate orders are not appealable as of right; nor are they within the scope of section 580 of the Civil Practice Act. (Moscow Fire Ins. Co. v. Bank of N. Y. & Trust Co., 278 N. Y. 709; Winter v. City of Niagara Falls, 190 N. Y. 198; Reining v. City of Buffalo, 102 N. Y. 308; MacMullen v. City of Middletown, 187 N. Y. 37; Kaplan v. City of Poughkeepsie, 279 N. Y. 153; Hawkins v. County of Oneida, 267 App. Div. 547, 297 N. Y. 393; Lubarsky v. City of Long Beach, 205 Misc. 153; Giles v. County of Otsego, 27 Misc 2d 749; Enslein v. Hudson & Manhattan R. R. Co., 5 N Y 2d 778; Jones v. Sabin, 122 App. Div. 666.) II. There can be no recovery for injury inflicted more than 90 days prior to the service of a notice of claim. Since there was no malpractice within that period, the complaint was properly dismissed. Even if the case were to be governed by principles applicable to Statutes of Limitation in malpractice eases, the result would be the same. The more authoritative rule and the sounder one is that the period for bringing suit begins when the malpractice ends and not when treatment ceases. (Meruk v. City of New York, 223 N. Y. 271; Thomann v. City of Rochester, 256 N. Y. 165; Jones v. County of Oneida, 263 App. Div. 794; Rayworth v. City of Buffalo, 284 App. Div. 827; Fitz Gerald v. City of Ogdensburg, 284 App. Div. 767; Matter of Martin v. School Bd. of Union Free Dist. No. 28, 301 N. Y. 233; Matter of Brown v. Board of Trustees of Town of Hamptonburg, School Dist. No. 4, 303 N. Y. 484; Bernstein’s Duck Farm v. Town of Brookhaven, 21 Misc 2d 953; Hammer v. Rosen, 7 N Y 2d 376; Sly v. Van Lengen, 120 Misc. 420; Nervick v. Fine, 195 Misc. 464, 275 App. Div. 1043, 276 App. Div. 775; Huysman v. Kirsch, 6 Cal. 2d 302; De Haan v. Winter, 258 Mich. 293; Schanil v. Branton, 181 Minn. 381; Peteler v. Robinson, 81 Utah 535; Williams v. Elias, 140 Neb. 656; Matthews v. Pisani, 8 A D 2d 854, 7 N Y 2d 708; Adams v. Berlinghof, 14 A D 2d 654; Gillette v. Tucker, 67 Ohio St. 106; Golia v. Health Ins. Plan of Greater N. Y., 6 A D 2d 884, 7 N Y 2d 931; Budoff v. Kessler, 284 App. Div. 1049; Rokita v. Germaine, 12 Misc 2d 84, 8 A D 2d 620.) III. The city took no position with reference to the timeliness of the service of the notice. Plaintiffs themselves announced that they were going to assert malpractice within the statutory period. Whether they could establish it was a matter for trial. Accordingly, there was neither a waiver of the condition of timeliness nor estoppel to deny that the condition had been met. (Winter v. City of Niagara Falls, 190 N. Y. 198; Forsyth v. City of Oswego, 191 N. Y. 441; Lubarsky v. City of Long Beach, 205 Misc. 153; Purdy v. City of New York, 193 N. Y. 521; Lewis v. City of New York, 278 N. Y. 517; Meiner v. City of New York, 262 App. Div. 970, 287 N. Y. 855; Matter of Miller v. New York City Housing Auth., 6 N Y 2d 932; Teresta v. City of New York, 304 N. Y. 440.)
   Chief Judge Desmond.

The infant plaintiff and his father took judgment against the City of New York on a jury’s verdict which imported a finding that the infant’s injuries were caused by the malpractice and negligence of physicians and nurses employed by the city in one of its hospitals. The city admits that there was evidence of such negligent causation. The Appellate Division, however, reversed the judgment on the law alone and dismissed the complaint, solely on the ground that the notice of claim against the city, which is a precedent to recovery (Administrative Code of City of New York, § 394a-1.0, subd. c), was not given within the time set by section 50-e of the General Municipal Law, that is, within 90 days after the claim accrued. The law question is: does such a claim accrue ” on the date of a negligent act or omission, or at the end of a continuous course of medical treatment by the accused hospital?

The child was admitted to the hospital on October 10,1956 and discharged therefrom on February 14,1958. The notice of claim was filed with the city 63 days later, that is, on April 18, 1958. The city argues that there can be no recovery for injuries inflicted more than 90 days prior to that notice and that the several negligent acts here complained of all took place on dates (October 11,1956; April 22, May 5 and November 25,1957) much earlier. We must, therefore, decide whether the 90-day period begins to run at the last date of malpractice or at the end of continuous treatment or hospital-patient or physician-patient relationship. The city’s brief acknowledges that “ New York precedent does not foreclose adoption of either view ” but urges that the sounder position is to begin the limitation period with the last act of malpractice rather than with the cessation of treatment.” We do not agree. We hold that at least 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, the “ accrual ” comes only at the end of the treatment.

Preliminarily, we note that the same rule must be applied whether we are passing on a true Statute of Limitations problem (Civ. Prac. Act, § 49, subd. 6; § 50, subd. 2) or a section 50-e dispute. The question is the same: when did the claim or cause of action “ accrue ”? This court has never had to decide whether in the case of continuous treatment “ accrual ” is postfoned until treatment ends, but in Hammer v. Rosen (7 N Y 2d 376, 379 [1960]) we forecast an affirmative answer. Hammer v. Rosen is not an actual application of the ‘ ‘ continuous treatment ” rule since in that case there was within the two years not only treatment but malpractice. But the Hammer-Bosen opinion referred (p. 380) to “ a continuing course of psychiatric treatment ’ ’ and, more significantly, cited with approval a number of decisions at least five of which plainly say that where there has been continuing treatment time limitation does not start until treatment ends (Schanil v. Branton, 181 Minn. 381, 382; De Haan v. Winter, 258 Mich. 293, 296-297; Williams v. Elias, 140 Neb. 656, 660; Peteler v. Robinson, 81 Utah 535, 546; Sly v. Van Lengen, 120 Misc. 420).

In approving the “ end of continuous treatment ” formula for computing time limitations in these matters, we are making no rash or sudden break with precedent. As pointed out by a recent writer (Lillich, Syracuse L. Rev., Fall ed., 1962, p. 42; see, also, the same author’s earlier article in 47 Corn. L. Q. 339-343), New York courts have been making such rulings since 1923 (Sly v. Van Lengen, 120 Misc. 420, supra). Hammer v. Rosen (7 N Y 2d 376, supra) indicated concurrence therewith and such has been the uniform trend in our State except for the Second Department’s two decisions in Borgia (the present case) and Gross v. Wise (16 A D 2d 682). The out-of-State cases listed above and cited by us in Hammer v. Rosen (supra) are of respectable age also, dating back as they do to the years between 1930 and 1941.

Little argument is needed to prove the proposition that the “ continuous treatment ” theory is the fairer one. It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician or hospital superintendent or by filing a notice of claim in the case of a city hospital. The case now under review will illustrate. This child by reason of the hospital personnel’s negligence suffered permanent brain damage at the hospital on the night he was admitted and on three later occasions was a victim of neglect amounting to malpractice. Acceptance by us of the city’s argument that the 90 days ran from the last malpractice would mean that, if the child had remained in the hospital a few days longer than he did, the 90-day period would have expired while he was still a patient receiving care and treatment related to the conditions produced by the earlier wrongful acts and omissions of defendant’s employees.

We are warned of dire results from this holding. Patients, we are told, will use this decision to justify suits brought years later. But this assumes that, so long as a patient continues to consult the same physician for any kind of illness, the time to sue as to any kind of malpractice will never start to run. We are creating no such situation. The “ continuous treatment ” we mean is treatment for the same or related illnesses or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship.

Since we are holding that the notice was given in time, we need not pass on plaintiffs’ assertions that the city waived or is estopped from taking advantage of the alleged delay in filing. As to other procedural positions taken by plaintiffs, we hold: (1) that the Appellate Division’s order denying plaintiffs’ motion to consolidate the cross appeal with defendant’s appeal is not presently reviewable under section 580 of the Civil Practice Act; (2) the Special Term order granting defendant’s motion to amend its answer is not before us since it was never appealed to the Appellate Division (as it turns out that amendment was not prejudicial to plaintiffs); and (3) the adult plaintiff’s attempted appeal from the trial court’s reduction of his separate verdict is not reviewable since he stipulated to such reduction and, accordingly, is not a 11 party aggrieved ’ ’ (see Enslein v. Hudson & Manhattan R. R. Co., 5 N Y 2d 778; Civ. Prac. Act, § 584-a).

Plaintiffs’ appeals discussed in the paragraph next above should be dismissed. The judgment should be reversed, with costs in this court and in the Appellate Division, and the judgment of the trial court reinstated.

Froessel, J. (dissenting).

On October 10, 1956 infant plaintiff, then 15 months old, was a normal, healthy, active child, able to walk and talk. At approximately 6 o’clock that evening he was scalded by hot coffee, and, after receiving first aid from his family physician, was taken to Kings County Hospital for treatment of the severe second and third degree burns on his neck, chest and right arm. After he was given medication and had his wounds dressed, the infant was removed from the emergency room to a ward room where he was put to bed. His mother was informed that her son “ was fine ” and would be home by the weekend

At some point between his admission and 8:00 a.m. the following day, the infant went into shock followed by a condition of anoxia (lack of oxygen in the brain) which resulted in irreversible diffuse cerebral damage. When the infant’s mother visited the hospital that morning, she was told by one of the nurses that her son had almost died. When visiting the child during the next few months she saw that he was in an oxygen tent, and during December, 1956 or the early part of 1957, his parents were informed that their son had suffered severe brain damage.

The infant remained in the hospital for physiotherapy and efforts at rehabilitation until February 14, 1958. The hospital record also contains a notation that the infant “ has been held in hospital for this physiotherapy and general nursing care because it was felt mother would be unable to properly take care of child during her pregnancy ’ ’. While in the hospital, the infant was found to be in convulsions or cyanotic (a bluish discoloration of the skin secondary to anoxia) on April 22, May 5 and November 25, 1957. This latter condition, if not treated properly, results in damage to the brain tissues, but here the child’s brain had already been permanently damaged on October 10-11, 1956, as conceded by defendant, and the subsequent conceded acts of malpractice had no added effect.

As a result, the infant is unable to stand, sit unsupported, speak, or feed himself; in addition, he has been rendered a mental defective, has weakness of the four extremities and serious visual defects, and is subject to frequent seizures involving loss of consciousness. With constant supervision and nursing care the infant could, over a period of time, learn a few simple techniques, i.e., to feed himself with a spoon, make known his toilet needs and respond to language instruction on a very simple level.

The dispositive question on this appeal is whether the notice of claim required to be filed pursuant to section 50-e of the General Municipal Law, as a “ condition precedent to the commencement of an action” against the city, was timely filed. That notice of claim was filed within 90 days of the date of the infant’s discharge from the hospital, but not within 90 days of any act of malpractice. We are thus called upon to decide whether the period within which to file notice commences upon the infant’s discharge from the hospital or upon the last act of malpractice.

At trial, plaintiffs conceded that the “ last act of malpractice ” was on November 25, 1957, and that if the rule is that the time begins to run from that date they are out ”. They contend, however, that since there were repeated acts of malpractice and negligence during the course of treatment of the infant, the limitation period does not commence to run until the termination of treatment, i.e., the date of the infant’s discharge from the hospital, in which case their notice was timely.

Although quite doubtful of the validity of plaintiffs’ contentions during the course of the trial, the Trial Judge subsequently concluded that the period within which to file notice of claim commenced on the date the infant was discharged (which he equated with the day a doctor last treats a patient); accordingly, he denied defendant’s motions for a directed verdict and to set aside the verdict. In arriving at his conclusion, the Trial Judge treated the problem as analogous to a situation presenting the question when the Statute of Limitations “ starts to run ” in malpractice cases. His principal reliance upon our decision in Hammer v. Rosen (7 N Y 2d 376) is misplaced, for there malpractice definitely occurred within the limitation period.

The majority of the Appellate Division concluded that the “ injury was sustained, at the latest, on the date of the last act of malpractice, and not on the date when treatment ceased”. Since notice had not been filed within 90 days of that date, the judgment appealed from was reversed on the law and the complaint dismissed. The dissenting Justices agreed with the majority that the notice was served late, but were of the opinion that 11 the city not only waived the late notice, but is estopped from making such a claim ”.

We have repeatedly held that the Statute of Limitations runs from the date that the negligent or wrongful act is committed (Hammer v. Rosen, supra; Golia v. Health Ins. Plan, 7 N Y 2d 931; Ranalli v. Breed, 277 N. Y. 630; Conklin v. Draper, 254 N. Y. 620; see, also, Rokita v. Germaine, 8 A D 2d 620, motion for leave to appeal den. 7 N Y 2d 710; Gross v. Wise, 16 A D 2d 682; Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Corn. L. Q. 339, 340). Applying this rule to the instant case, the notice must be held to have been served late, since it was served more than 90 days after the last act of malpractice.

Our courts have long recognized, however, that a strict application of this rule may lead to an unjust result and, in an attempt to ameliorate its rigors, have engrafted the “ continuous treat-' ment ’ ’ doctrine on to the rule. This doctrine, now a well-recognized rule of law, has been confined in its applicability to cases which factually presented some plausible theory for concluding that the injury complained of was the result of a continued course of treatment, and not merely the result of one or more separate and distinct acts. No such theory is available to plaintiffs in the case at bar.

The instant case is not one in which the malpractice consisted of failing to remove a foreign object from the patient’s body, and thus constituted a continuing wrong so long as the patient remained under the defendant’s care (Ranalli v. Breed, supra; Sly v. Van Lengen, 120 Misc. 420 ; Huysman v. Kirsch, 6 Cal. 2d 302; Gillette v. Tucker, 67 Ohio St. 106); nor is it one in which the defendant failed correctly to diagnose and treat plaintiff’s condition, and throughout their relationship persisted in Ms error (Golia v. Health Ins. Plan, 7 N Y 2d 931, supra; Williams v. Elias, 140 Neb. 656); or where the defendant improperly treated plaintiff throughout a continuous course of treatment for the initial ailment (Hammer v. Rosen, supra; Nervick v. Fine, 190 Misc. 464; De Haan v. Winter, 258 Mich. 293; Schanil v. Branton, 181 Minn. 381; Peteler v. Robinson, 81 Utah 535).

Here the infant was brought into the hospital for treatment of burns, which quickly healed. In the course of that treatment, defendant was negligent in allowing the child to go into shock and sustain irreversible brain damage on the very night of his admission, and that gave rise to an immediate cause of action. The infant’s subsequent stay for the purpose of physiotherapy and rehabilitation can in no sense be deemed continuous treatment for burns, or a continuation of the original wrong or malpractice. The permanent damage had already been done — the doctors were merely trying, in accordance with approved practice, to instruct the infant in a few simple techniques to alleviate in part the result of the serious damage already inflicted.

As to the subsequent malpractice on the three occasions when the infant was found to be in convulsions or cyanotic, nothing was shown to indicate that they were related to the original injury— the burn — or the result of the therapy which the infant was receiving; indeed plaintiffs’ counsel conceded that he was not showing these acts to prove additional damage but merely because “ they’re acts of malpractice so far as the statute is involved. That’s the purpose of offering it.” At best, each incident would have given rise to a new cause of action, and plaintiffs would have had to file the notice within 90 days thereof. This they failed to do. We do not see how we can afford these plaintiffs relief without overturning the established distinctions between cases involving a continuous course of improper treatment and those presenting merely an isolated act or acts.

As to the claim of estoppel, the city did nothing here to mislead plaintiffs other than to retain the notice of claim. That notice based plaintiffs’ action on “continued and consistent negligent and careless treatment * * * from October 10th, 1956 to and including the 14th day of February, 1958 ”, which, if true, would have rendered the service of the notice of claim timely. Such claim, however, was never established at the trial.

We have considered plaintiffs’ contentions with respect to the intermediate orders they seek to have reviewed, and are all agreed that these appeals should be dismissed.

We are not unmindful of the unfortunate consequences of an affirmance in this case, but our prior decisions in this area, as well as our literal interpretation of section 50-e of the General Municipal Law, beginning with Matter of Martin v. School Bd. (301 N. Y. 233), leave us no alternative. By reinstating the verdict the majority here, on this record, are approving the award of substantial damages for an act of negligence committed more than one and one-half years before plaintiffs filed their notice of claim, contrary to our holdings in analogous property damage cases (Meruk v. City of New York, 223 N. Y. 271, 275-276; Thomann v. City of Rochester, 256 N. Y. 165, 170).

The judgment should be affirmed, and the appeals from the intermediate orders dismissed, without costs.

Judges Dye, Fuld, Burke and Foster concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion.in which Judge Yan Voorhis concurs.

Upon appeal from the orders: Appeal dismissed.

Upon appeal from the judgment: Judgment of the Appellate Division reversed and that of the Trial Term reinstated, with costs in this court and in the Appellate Division.  