McGuire v. Sterling Doubleday Enterprises, L.P.
| Decision Date | 27 June 2005 |
| Docket Number | 2003-10064. |
| Citation | 19 A.D.3d 660,2005 NY Slip Op 05567,799 N.Y.S.2d 65 |
| Parties | MARIE McGUIRE, Respondent, v. STERLING DOUBLEDAY ENTERPRISES, L.P., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the causes of action alleging medical malpractice and breach of contract are dismissed.
This action was commenced on February 20, 2003, well beyond the expiration of the 2½-year statute of limitations. Thus, the cause of action alleging medical malpractice was time-barred.
The plaintiff's assertion that the defendants engaged in purposeful concealment of her medical records which precluded her from timely commencing the cause of action alleging medical malpractice is without support in the record. Rather, the delay in the plaintiff's obtaining such records was occasioned by the fact that she had a succession of different attorneys contacting the defendants' representative requesting the records in question, which circumstance necessitated the defendants' request for proof of the plaintiff's consent to change attorneys. In fact, in a letter to the plaintiff's third attorney dated May 7, 2002, well before expiration of the 2½-year statute of limitations (see CPLR 214-a), the defendants' representative requested proof of the change of the prior attorneys and that request was ignored. It cannot be said on this record that the defendants engaged in concealment. Therefore, the plaintiff's contention that the defendants were equitably estopped from pleading the statute of limitations as an affirmative defense is without merit (cf. Kamruddin v Desmond, 293 AD2d 714 [2002]).
We note that on February 20, 2003, the plaintiff, through counsel, certified the merit of the plaintiff's medical malpractice claim pursuant to CPLR 3012-a, belying the plaintiff's position that the supposed inaccessibility to the first aid report impeded the timely pursuit of the action to recover damages for medical malpractice (see CPLR 3012-a [d] [])
That branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging breach of contract also should have been granted. In Leon v Martinez (84 NY2d 83, 87-88 [1994]), the Court of Appeals observed that, on a motion to dismiss pursuant to CPLR 3211, (see Cayuga Partners, LLC v 150 Grand, 305 AD2d 527 [2003] [citations omitted]). Such a motion should be granted only when, even viewing the allegations as true, the plaintiff still cannot establish a cause of action. The standard...
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