Spindell v. Brooklyn Jewish Hospital
| Decision Date | 07 December 1970 |
| Citation | 317 N.Y.S.2d 963,35 A.D.2d 962 |
| Parties | Molly SPINDELL, Respondent, v. BROOKLYN JEWISH HOSPITAL, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lawrence M. Rosenberg and Lothar E. Nachman, New York City, for plaintiff-respondent; to be City, Lothar E. Nachman, New York City, of counsel.
Bower, O'Connor & Gardner, New York City, for defendant-appellant, Brooklyn Jewish Hospital; Benjamin H. Siff, New York City, of counsel.
Before RABIN, Acting P.J., and HOPKINS, MARTUSCELLO, LATHAM and BRENNAN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated November 3, 1969, which (1) granted plaintiff's motion to dismiss the affirmative defense of Res judicata in defendant's answer and (2) denied defendant's cross motion to dismiss the complaint on the ground of Res judicata.
Order reversed, on the law, without costs, plaintiff's motion denied and defendant's cross motion granted. The findings of fact below are affirmed.
Plaintiff commenced a prior action against defendant in 1967 which resulted in a judgment in favor of defendant upon the granting of defendant's motion to dismiss the complaint on the ground that the action was barred by the Statute of Limitations. Plaintiff defaulted on that motion and failed to move to open her default. The alleged negligent act had taken place in 1963 and thus the three-year Statute of Limitations period had expired. In 1969, the Court of Appeals in Flanagan v. Mt. Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 held that in a foreign-object malpractice case the statute will not begin to run until the patient could have reasonably discovered the malpractice. Several months later plaintiff commenced this action, alleging that she discovered the foreign object for the first time in July, 1967.
We are of the view that it was error to have struck the defense of Res judicata. Plaintiff never exercised her right to move to reopen her default on the motion to dismiss the complaint in the prior action and thus the determination therein, that the Statute of Limitations barred the claim, became the law of the case. The judgment in the prior action determined that the defense of the Statute of Limitations barred any rights she might have had against defendant. That determination may be considered to be on the merits, at least as far as the courts of New York...
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Liebman v. Westchester County
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Joseph v. Athanasopoulos
...thereafter maintaining another action to enforce the claim in the same State.” (emphasis added)); Spindell v. Brooklyn Jewish Hosp., 35 A.D.2d 962, 317 N.Y.S.2d 963, 965 (2d Dep't 1970) (dismissal on statute of limitations grounds “may be considered to be on the merits, at least as far as t......
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VanMinos v. Merkley
...The first dismissal however, for such purposes, is deemed on the merits 'as to the point it decided' (Spindell v. Brooklyn Jewish Hosp., 35 A.D.2d 962, 963, 317 N.Y.S.2d 963, 964, affd., 29 N.Y.2d 888, 328 N.Y.S.2d 678, 278 N.E.2d 912). Since the second complaint alleges grounds for indemni......
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Bray v. New York Life Ins., 1183
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