Gross v. Wise

• Decision Date: 23 April 1962
• Citation: 16 A.D.2d 682,227 N.Y.S.2d 523
• Parties: Walter GROSS, Appellant, v. George N. WISE, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 523

227 N.Y.S.2d 523

16 A.D.2d 682

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

Supreme Court, Appellate Division, Second Department.

April 23, 1962.

Kane, Grae & Agar, St. George, Staten Island, for appellant; Michael H. Grae, St. George, 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, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages alleged to have been sustained as the result of malpractice, plaintiff appeals from a judgment of the Supreme Court, Richmond County, entered November 22, 1961, which dismissed his complaint upon the opening statement of his counsel to the jury on the trial, and upon such counsel's offer of proof to the court in the absence of the jury.

Judgment affirmed, without costs.

In his offer of proof plaintiff's counsel conceded that the last alleged act of malpractice occurred on July 16, 1954 and that, while treatment was rendered by defendant subsequent thereto on at least thirty-nine occasions until April of 1957, there was no claim by plaintiff that this latter treatment was improper. The action was commenced in July, 1957.

In our opinion, based on the offer of proof, the alleged malpractice was not a continuing wrong; hence, the action is barred by the two-year limitation period (Civil Practice Act, § 50, subd. 1; Hammer v. Rosen, 7 N.Y.2d 376, 198 N.Y.S.2d 65, 165 N.E.2d 756; Nervick v. Fine, 195 Misc. 464, 87 N.Y.S.2d 534, affd. 275 App.Div. 1043, 91 N.Y.S.2d 924; Conklin v. Draper, 229 App.Div. 227, 241 N.Y.S. 529, affd. 254 N.Y. 620, 173 N.E. 892; Matthews v. Pisani, 8 A.D.2d 854, 191 N.Y.S.2d 143, leave to appeal denied 7 N.Y.2d 708, 193 N.Y.S.2d 1029, 162 N.E.2d 756).