Wallach, J. (dissenting). I would affirm the judgment appealed from. Before invoking the toll provided by the "continuous treatment” rule to salvage this otherwise time-barred medical malpractice action, the law requires us to examine the nature of the "treatment” and to whom it was rendered. And unless, under CPLR 214-a (the codification of the continu*654ous treatment rule first enunciated in Borgia v City of New York, 12 NY2d 151) "there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure [constituting malpractice]” the toll is not available to either plaintiff. No one suggests that any treatment whatever was rendered to the father, Emory White, which could extend the limitation period as to him; therefore any cause of action he may have is manifestly time barred. And, because the treatment being rendered to the mother, Lillian Jorge, was routine prenatal care, wholly unrelated to sickle cell anemia, which never presented any opportunity to confront, much less to treat, the consequences of the negligent test administered to her husband on January 16, 1985, the toll is also inapplicable to her cause of action.
The fundamental rationale for application of the continuous treatment doctrine is absent in this case. The reason for judicial acceptance in New York of this toll, recognized earlier in other jurisdictions, was stated by the Court of Appeals in Borgia (supra, at 156): "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”. (Emphasis added.)
Before the toll becomes available there must be proof that the patient has made a choice to repose continuing confidence in the physician to correct or ameliorate the effect of a professional error rather than to have recourse to the legal system. As was observed in Rizk v Cohen (73 NY2d 98, 104): "The cases illustrate that the determination as to whether continuous treatment exists, must focus on the patient.[1] When 'a timely return visit instigated by the patient’[2] is made, the policies underlying the continuous treatment doctrine are implicated and the toll is properly invoked (McDermott v Torre, 56 NY2d 399, 406, supra [emphasis supplied]). However, where, as here, plaintiff did not seek corrective treatment and, in fact, allegedly did not even know that further treatment was necessary, there is no sound basis for applying the continuous treatment doctrine. ”[1]
That is precisely the position of plaintiffs here, who at no time were aware that "further treatment was necessary” and were not in fact receiving "further treatment”. And as further noted in Rizk (supra, at 103), neither the "continuing nature *655of [the] diagnosis” (McDermott v Torre, 56 NY2d 399, 406, supra) nor the "mere continuity of a general physician-patient relationship” (Borgia v City of New York, supra, at 157) is sufficient to establish continuous treatment. Nor does even lengthy interaction between doctor and patient, without actual treatment of the condition providing the gravamen of the malpractice action, suffice (Nykorchuck v Henriques, 153 AD2d 316; Delaney v Muscillo, 138 AD2d 258, appeal dismissed 73 NY2d 852).
I am aware that the majority is striving to reach a sympathetic result. But because the Legislature has already declared itself in this area, the unsupportable judicial expansion here undertaken of the continuous treatment rule is inappropriate, and the sole remedy is further legislative action (Rodriguez v Manhattan Med. Group, 155 AD2d 114).
Carro, J. P., Rosenberger and Ellerin, JJ., concur with Kassal, J.; Wallach, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, entered on or about April 28, 1989, reversed, on the law, and the complaint reinstated, without costs.
. This emphasis added.
. This emphasis in original.