Lettieri v. Allen, 5195.

CourtNew York Supreme Court Appellate Division
Citation2009 NY Slip Op 00987,59 A.D.3d 202,873 N.Y.S.2d 39
Docket Number5195.
PartiesROBERT LETTIERI, Appellant, v. ANSWORTH ALLEN, M.D., et al., Respondents.
Decision Date10 February 2009
59 A.D.3d 202
873 N.Y.S.2d 39
2009 NY Slip Op 00987
ROBERT LETTIERI, Appellant,
v.
ANSWORTH ALLEN, M.D., et al., Respondents.
5195.
Appellate Division of the Supreme Court of the State of New York, First Department.
Decided February 10, 2009.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 30, 2008, in an action for injuries allegedly sustained during surgery, dismissing the complaint pursuant to an order that granted defendants' motion for leave to amend their answers to assert the affirmative defense of statute of limitations, and, upon amendment, to dismiss the complaint pursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs.


The motion court properly granted defendants leave to amend their answer to raise the affirmative defense of the statute of limitations (see CPLR 3025 [b]). Although the motion was made on the eve of trial and more than two years after defendants answered the complaint, given plaintiff's assertion that his intent from the inception of the action was to pursue a claim for battery, which is governed by a one-year statute of limitations (CPLR 215 [3]), he cannot reasonably claim to have been prejudiced or surprised by defendants' request to amend their answers (see Solomon Holding Corp. v Golia, 55 AD3d 507 [2008]; Seda v New York City Hous. Auth., 181 AD2d 469 [1992], lv denied 80 NY2d 759 [1992]). Furthermore, contrary to plaintiff's argument that defendants waived the defense since they had notice of his intention to pursue a battery claim, the record shows that plaintiff consistently described his action as one for medical malpractice, not battery, and his allegations

59 A.D.3d 203

that defendants' decision to perform a tenotomy resulted from their misdiagnosis of a torn biceps tendon as a superior labrum anterior-posterior tear, coupled with his consistent assertions that defendants treated him without his informed consent, are the essence of a claim for lack of informed consent (see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32 [2001]).

Concur — ANDRIAS, J.P., NARDELLI, CATTERSON, ACOSTA and DeGRASSE, JJ.

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6 practice notes
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • 19 Agosto 2014
    ...defense, undermining any claim of prejudice due to Genesis Holding subsequently seeking to plead this defense.See Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 (1st Dep't 2009). Once plaintiff revealed the evidence relied on for standing, Genesis Holding raised plaintiff's lack of stand......
  • Jones v., Index No. 21064/2014
    • United States
    • United States State Supreme Court (New York)
    • 7 Agosto 2017
    ...sought after the filing of the note of issue, may be permitted in the absence of a claim of prejudice or surprise. See Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 (1st Dep't 2009); Byrne v. Fordham University, 118 A.D.2d 525, 500 N.Y.S.2d 253 (1st Dep't 1986). Despite the laxity of CP......
  • Ramos v. Keston Brown, Gristede's Foods, Inc., Index No. 309164/2009
    • United States
    • United States State Supreme Court (New York)
    • 2 Septiembre 2014
    ...sought after the filing of the note of issue, may be permitted in the absence of a claim of prejudice or surprise. See Lettieri v. Allen, 59 A.D.3d 202,Page 10873 N.Y.S.2d 39 (1st Dep't 2009); Byrne v. Fordham University, 118 A.D.2d 525, 500 N.Y.S.2d 253 (1st Dep't 1986). Despite the laxity......
  • Yenem Corp. v. 281 Broadway Holdings
    • United States
    • New York Supreme Court Appellate Division
    • 29 Junio 2010
    ...counterclaims against Randall is apparently meritorious and will neither prejudice nor surprise that plaintiff ( see Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 [2009] ). Accordingly, the order of the Supreme Court, New York County (Carol R. Edmead, J.), entered September 18, 2008, wh......
  • Request a trial to view additional results
6 cases
  • FTBK Investor II LLC v. Genesis Holding LLC, 810163/2011
    • United States
    • United States State Supreme Court (New York)
    • 19 Agosto 2014
    ...defense, undermining any claim of prejudice due to Genesis Holding subsequently seeking to plead this defense.See Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 (1st Dep't 2009). Once plaintiff revealed the evidence relied on for standing, Genesis Holding raised plaintiff's lack of stand......
  • Jones v., Index No. 21064/2014
    • United States
    • United States State Supreme Court (New York)
    • 7 Agosto 2017
    ...sought after the filing of the note of issue, may be permitted in the absence of a claim of prejudice or surprise. See Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 (1st Dep't 2009); Byrne v. Fordham University, 118 A.D.2d 525, 500 N.Y.S.2d 253 (1st Dep't 1986). Despite the laxity of CP......
  • Ramos v. Keston Brown, Gristede's Foods, Inc., Index No. 309164/2009
    • United States
    • United States State Supreme Court (New York)
    • 2 Septiembre 2014
    ...sought after the filing of the note of issue, may be permitted in the absence of a claim of prejudice or surprise. See Lettieri v. Allen, 59 A.D.3d 202,Page 10873 N.Y.S.2d 39 (1st Dep't 2009); Byrne v. Fordham University, 118 A.D.2d 525, 500 N.Y.S.2d 253 (1st Dep't 1986). Despite the laxity......
  • Yenem Corp. v. 281 Broadway Holdings
    • United States
    • New York Supreme Court Appellate Division
    • 29 Junio 2010
    ...counterclaims against Randall is apparently meritorious and will neither prejudice nor surprise that plaintiff ( see Lettieri v. Allen, 59 A.D.3d 202, 873 N.Y.S.2d 39 [2009] ). Accordingly, the order of the Supreme Court, New York County (Carol R. Edmead, J.), entered September 18, 2008, wh......
  • Request a trial to view additional results

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