Lopez v. Wyckoff Heights Med. Ctr.

• Decision Date: 03 November 2010
• Citation: 78 A.D.3d 664,913 N.Y.S.2d 230
• Parties: Lissette LOPEZ, etc., plaintiff-respondent, v. WYCKOFF HEIGHTS MEDICAL CENTER, et al., defendants-respondents, et al., defendants, Yvon Nazaire, etc., appellant.
• Court: New York Supreme Court — Appellate Division

913 N.Y.S.2d 230
78 A.D.3d 664

Lissette LOPEZ, etc., plaintiff-respondent,
v.
WYCKOFF HEIGHTS MEDICAL CENTER, et al., defendants-respondents, et al., defendants,
Yvon Nazaire, etc., appellant.

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

Nov. 3, 2010.

913 N.Y.S.2d 231

Edward J. Guardaro, Jr., White Plains, N.Y. (Gina B. DiFolco and Terence Reynolds of counsel), for appellant.

Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Jason M. Rubin of counsel), for plaintiff-respondent.

Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (David J. Knight and Lynn Hajek of counsel), for defendant-respondent Wyckoff Heights Medical Center.

A. GAIL PRUDENTI, P.J., DANIEL D. ANGIOLILLO, ARIEL E. BELEN, and SANDRA L. SGROI, JJ.

78 A.D.3d 664

In an action to recover damages for medical malpractice, wrongful death, and

913 N.Y.S.2d 232

conscious pain and suffering, the defendant Yvon Nazaire appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated February 5, 2009, as denied those branches of his motion which were for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred, and for leave to amend his answer to assert a cross claim for indemnification and thereupon for summary judgment on that cross claim or, alternatively, for severance of that cross claim.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the

78 A.D.3d 665

defendant Yvon Nazaire which was for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred and substituting therefor a provision granting that branch of the motion, and (2) by adding thereto the words "are denied as academic" after the words "for leave to sever"; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant Yvon Nazaire, payable by the plaintiff.

The defendant Yvon Nazaire contends that the Supreme Court erred in denying that branch of his motion which was for summary judgment dismissing the second amended complaint insofar as asserted against him as time-barred. We agree.

Nazaire established his prima facie entitlement to judgment as a matter of law dismissing the second amended complaint insofar as asserted against him since it is undisputed that the statute of limitations had expired prior to the plaintiff's service and filing of the second amended complaint,...