Ducillo v. Hudson Valley At Saint Francis, LLC

• Court: New York Supreme Court — Appellate Division
• Citation: Ducillo v. Hudson Valley At Saint Francis, LLC, 2015 NY Slip Op 4271, 128 A.D.3d 885, 9 N.Y.S.3d 624 (N.Y. App. Div. 2015)
• Decision Date: 20 May 2015
• Docket Number: 2013-01356
• Parties: Peter DUCILLO, respondent, v. HUDSON VALLEY AT SAINT FRANCIS, LLC, defendant, Mid Hudson Medical Group, P.C., et al., appellants.

128 A.D.3d 885

9 N.Y.S.3d 624

2015 N.Y. Slip Op. 04271

Peter DUCILLO, respondent

v. HUDSON VALLEY AT SAINT FRANCIS, LLC, defendantMid Hudson Medical Group, P.C., et al., appellants.

2013-01356

Supreme Court, Appellate Division, Second Department, New York.

May 20, 2015.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Christopher P. Kennan and Timothy M. Smith of counsel), for appellant Mid Hudson Medical Group, P.C.

Feldman, Kleidman & Coffey LLP, Fishkill, N.Y. (Marsha S. Weiss of counsel), for appellant Spyros Panos.

Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., THOMAS A. DICKERSON, HECTOR D. LaSALLE, and BETSY BARROS, JJ.

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants Mid Hudson Medical Group, P.C., and Spyros Panos separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as, respectively, denied those branches of their separate motions which were pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging medical malpractice insofar as asserted against each of them as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

According to the plaintiff, in April 2008, he sought treatment for his right knee from the defendant Spyros Panos, a physician employed by the defendant Mid Hudson Medical Group, P.C. (hereinafter Mid Hudson). On September 16, 2008, Panos performed surgery on the plaintiff's right knee. On November 22, 2011, the plaintiff commenced this action against, among others, Panos and Mid Hudson, inter alia, to recover damages for medical malpractice. Panos and Mid Hudson (hereinafter together the appellants) separately appeal from so much of an order as denied those branches of their separate motions which were pursuant to CPLR 3211(a)(5) to dismiss the medical malpractice cause of action insofar as asserted against each of them as time-barred.

The allegations in the complaint, which must be accepted as true for the purposes of this motion (see Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d 978, 979, 986 N.Y.S.2d 523 ; 6D Farm Corp. v. Carr, 63 A.D.3d 903, 905, 882 N.Y.S.2d 198 ; Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 A.D.3d 815, 816, 854 N.Y.S.2d 230 ; Sabadie v. Burke, 47 A.D.3d 913, 914, 849 N.Y.S.2d 440 ), along with the allegations set forth in the plaintiff's affidavit, wherein he stated that Panos made certain misrepresentations and false assurances to him after the subject surgery and that those actions prevented him from discovering the malpractice and commencing the action within the applicable limitations period, were sufficient to warrant the application of the doctrine of equitable estoppel against both Panos and Mid Hudson, as his employer (see Simcuski v. Saeli, 44 N.Y.2d 442, 447–449, 406 N.Y.S.2d 259, 377 N.E.2d 713 ; Giannetto v. Knee, 82 A.D.3d 1043, 1045–1046, 919 N.Y.S.2d 176 ; Owen v. Mackinnon, 6 A.D.3d 684, 686, 775 N.Y.S.2d 565 ; cf. Saretto v. Panos, 120 A.D.3d 786, 992 N.Y.S.2d 88 ; Plain v. Vassar Bros. Hosp., 115 A.D.3d 922, 923–924, 982 N.Y.S.2d 558 ; Nelson v. Hudson Val. Ctr. at St. Francis, LLC,...