Gross v. Wise

• Decision Date: 22 April 1963
• Citation: 239 N.Y.S.2d 954,18 A.D.2d 1097
• Parties: Walter GROSS, Appellant, v. George N. WISE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 954

239 N.Y.S.2d 954

18 A.D.2d 1097

Walter GROSS, Appellant, v.George N. WISE, Respondent.

Supreme Court, Appellate Division, Second Department.

April 22, 1963.

Kane, Grae & Agar, Staten Island, for appellant.Michael H. Grae, Staten Island, of counsel.

Martin, Clearwater & Bell, New York City, for respondent.Wm. C. Ketchum, Jr., New York City, of counsel.

Before UGHETTA, Acting P. J., and KLEINFELD, BRENNAN, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages alleged to have been sustained as the result of malpractice, this court affirmed a judgment of the Supreme Court, Richmond County, entered November 22, 1961, which dismissed the complaint upon the opening of plaintiff's counsel and following an offer of proof by him, on the ground that the cause of action was barred by the two-year limitation period (see16 A.D.2d 682, 227 N.Y.S.2d 523).Reargument was granted (18 A.D.2d 833) on the basis of the subsequent decision by the Court of Appeals in Borgia v. City of New York(12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777).

On reargument, order of this court, dated April 23, 1962 affirming the judgment, vacated; and judgment reversed on the law and a new trial granted, with costs to plaintiff to abide the event.

In the offer of proof, plaintiff's counsel conceded that the last act of malpractice occurred on July 16, 1954 and that, while the defendant rendered treatment to plaintiff with respect to the particular condition complained of on 39 occasions until April of 1957,...