Eagleston v. Mt. Sinai Medical Center

Decision Date14 November 1988
Citation533 N.Y.S.2d 992,144 A.D.2d 427
PartiesMark EAGLESTON, et al., Appellants, v. MT. SINAI MEDICAL CENTER, Defendant, Howard J. Goldman, Respondent.
CourtNew York Supreme Court — Appellate Division

Pegalis & Wachsman, P.C., Great Neck (Anna M. Andron, of counsel), for appellants.

McAloon, Friedman & Mandell, P.C., New York City (Steven C. Mandell, of counsel), for respondent.

Before MANGANO, J.P., and LAWRENCE, SPATT and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Pizzuto, J.), dated April 8, 1987, which dismissed the complaint insofar as it is asserted against the respondent, upon granting his cross motion for summary judgment. The notice of appeal from an order of the same court which granted the cross motion for summary judgment is deemed a premature notice of appeal from the judgment (CPLR 5520[c] ).

ORDERED that the judgment is affirmed, with costs.

In September 1976 the plaintiff Mark Eagleston underwent surgery for the removal of an undescended left testicle which, if it remained in the plaintiff's groin, could have become cancerous. However, the respondent could not locate the left testicle during surgery and therefore did not remove it. He thereafter advised Mr. Eagleston that no testicle was found and, concluding that he had been born without a left testicle, that he had nothing to worry about. Mr. Eagleston was discharged from treatment November 1976. He consulted the respondent Goldman in 1977 and again in 1980 on account of urinary infections and a pain in his right inguinal area; there is no indication that the 1976 surgery was mentioned at either visit. In 1983, almost seven years after what resulted in only exploratory surgery, he experienced pain at the site of the incision. He returned to the respondent who felt a lump and who, in his 1983 office notes, acknowledged the possibility that in 1976 he "missed" the undescended left testicle. Mr. Eagleston subsequently underwent surgery by another physician, as a result of which an undescended cancerous left testicle was removed. This litigation, premised on the respondent's failure in 1976 to remove the undescended testicle, was commenced in April 1984. The respondent claimed in his answer that the action was time barred. The plaintiffs moved to dismiss his Statute of Limitations defense and he cross-moved for summary judgment dismissing the complaint insofar as it is asserted against him as time barred. His motion was granted, and this appeal ensued.

The plaintiffs have failed to sustain their burden (see, Ciciless v. Lane, 129 A.D.2d 759, 514 N.Y.S.2d 752; Barrella v. Richmond Mem. Hosp., 88 A.D.2d 379, 453 N.Y.S.2d 444; Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383) of establishing that Mr. Eagleston's visits to the respondent in 1977 and 1980 were a continuation of the surgical treatment giving rise to this litigation (see, Barrella v. Richmond Mem. Hosp., supra ). Indeed, it appears that these consultations were wholly unrelat to the omission complained of (cf., CPLR 214-a). We note, moreover, that a period in excess of the two and one-half year Statute of Limitations elapsed between Mr. Eagleston's visits to the respondent, not once but twice (see, Grellet v. City of New York, 118 A.D.2d 141, 149, 504 N.Y.S.2d 671). The continuous...

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  • Bruske v. Hille
    • United States
    • South Dakota Supreme Court
    • 20 Agosto 1997
    ...affirmed; noting, "[f]raud is not to be presumed, but must be strictly proven") (citation omitted); Eagleston v. Mt. Sinai Medical Center, 144 A.D.2d 427, 533 N.Y.S.2d 992, 994 (1988)(dismissal of fraud cause of action against physician affirmed as there was no intentional concealment). Hil......
  • Concha v. Local 1115 Employees Union Welfare Trust Fund
    • United States
    • New York Supreme Court — Appellate Division
    • 12 Junio 1995
    ...that prevented her from filing a timely action (see, Simcuski v. Saeli, 44 N.Y.2d 442, 406 N.Y.S.2d 259, 377 N.E.2d 713; Eagleston v. Mt. Sinai Med. Center, supra ). She also failed to submit any evidence that the Statute of Limitations should be tolled pursuant to CPLR 208 due to her impai......
  • McClurg v. State
    • United States
    • New York Supreme Court — Appellate Division
    • 27 Mayo 1994
    ...by not disclosing the melanoma (see, Rizk v. Cohen, 73 N.Y.2d 98, 105-106, 538 N.Y.S.2d 229, 535 N.E.2d 282; Eagleston v. Mt. Sinai Med. Ctr., 144 A.D.2d 427, 429, 533 N.Y.S.2d 992, lv denied 74 N.Y.2d 601, 541 N.Y.S.2d 984, 539 N.E.2d 1112; cf., Simcuski v. Saeli, 44 N.Y.2d 442, 451-452, 4......
  • Coyne v. Besser
    • United States
    • New York Supreme Court — Appellate Division
    • 24 Septiembre 1990
    ...of the doctrine (see, Grellet v. City of New York, 118 A.D.2d 141, 148-149, 504 N.Y.S.2d 671; see also, Eagleston v. Mt. Sinai Med. Center, 144 A.D.2d 427, 533 N.Y.S.2d 992). In the instant case, there exist a number of factors which indicate that Mr. Coyne's September 25, 1984, visit to Dr......
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