Calhoun v. Gale
| Decision Date | 11 December 1968 |
| Citation | 23 N.Y.2d 756,296 N.Y.S.2d 953 |
| Parties | , 244 N.E.2d 468 Virginia O. CALHOUN et al., Appellants, v. Julius P. GALE, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Second Department, 29 A.D.2d 766, 287 N.Y.S.2d 710.
Julien & Glaser, New York City ( Helen B.Stoller, New York City, on the brief), for plaintiffs-appellants.
Martin, Clearwater & Bell, New York City (George van Setter, New York City, of counsel), for defendant-respondent Julius P. Gale. The action, which was begun on April 26, 1964 by patient against physician, arose out of an operation performed by the physician on the patient on June 1, 1959. Substantial damages were sought for patient's alleged resultant injuries, physical pain, and mental anguish. Though the complaint alleged that the physician breached his contract on ground that the operation was allegedly performed in an unfit and improper manner, it was not claimed that physician agreed to do anything more than perform his common law duty of using reasonable care and his best judgment in exercising his skill which the law implies he represents to be such as is ordinarily possessed by physicians and surgeons in the locality.
The Supreme Court, Special Term, Suffolk County, D. Ormonde Ritchie, J., entered an order denying a motion to dismiss the complaint on ground that the action was barred by the statute of limitations.
The Appellate Division entered an order February 13, 1968 which reversed the order of the Special Term and granted the motion to dismiss the complaint. The Appellate Division held that since the physician's common law and his alleged contractual relationship were one and the same, the action, however labeled, was one for alleged malpractice, at least for time limitation purposes, and that therefore the three-year period of limitation under CPLR 214, subd. 6 applied and barred the action.
The patient appealed to the Court of Appeals, contending that the complaint alleged a cause of action for breach of contract and that therefore the action was governed by the six-year period of limitation, and that, at the least, the patient should be granted leave to replead.
Order affirmed, with costs.
All concur.
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