Szajna v. Rand
| Decision Date | 21 April 1980 |
| Parties | Dean M. SZAJNA, Appellant, v. Ellis D. RAND et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
John J. Tullman, New York City (Arthur N. Seiff, New York City, of counsel), for appellant.
Anthony L. Schiavetti, New York City (Michael B. Schad, New York City, of counsel), for respondents.
Before DAMIANI, J. P., and MARGETT, O'CONNOR and WEINSTEIN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County, entered October 19, 1979, which granted defendants' motion pursuant to CPLR 3211 (subd. (a), par. 5) to dismiss the complaint as barred by the Statute of Limitations.
Order and judgment reversed, on the law, with $50 costs and disbursements and motion to dismiss complaint denied. Defendants' time to serve an answer is extended until 20 days after service upon them of a copy of the order to be entered hereon, together with notice of entry thereof.
Contrary to Special Term's conclusion, CPLR 214-a does not apply to those causes of action arising prior to its effective date, July 1, 1975 (L.1975, ch. 109, § 37). Consequently, the facts of this case are controlled not by CPLR 214-a, but by prior decisional law.
In our opinion, Murphy v. St. Charles Hosp., 35 A.D.2d 64, 312 N.Y.S.2d 978, is dispositive of the case at bar. There, reviewing the rationale underlying the creation of the "foreign object exception" in Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871, this court concluded that an identity of relevant criteria warranted the extension of this exception to cases involving surgically implanted prosthetic devices. Although the Legislature has since indicated its intent to restrict the Flanagan exception and exclude from it prosthetic or fixation devices, as already noted, this restriction is to be applied prospectively from July 1, 1975 and is inapplicable to the case at bar. Therefore, under Murphy, which remains a viable interpretation of Flanagan for those acts preceding July 1, 1975, insertion of an intramedullary nail would be within the foreign object exception. The cause of action thus accrued upon discovery of the broken nail and service of process within three years of that discovery was timely. Nor was plaintiff's failure to submit, in opposition to defendants' motion, an affidavit of an individual with personal knowledge of...
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...the two and one-half year period of CPLR 214-a, which became effective on July 1, 1975 (see L.1975, ch. 109, § 37, cf. Szajna v. Rand, 75 A.D.2d 617, 618, 427 N.Y.S.2d 57). Implementation of that limitation of time will require the determination of (1) the date upon which plaintiffs' cause ......
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...of Limitations and that the plaintiff's cause of action, therefore, accrued upon discovery of the broken nail (see, Szajna v. Rand, 75 A.D.2d 617, 427 N.Y.S.2d 57), "it is now clear that a fixation device placed intentionally within the body cannot be considered a foreign object even with r......
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Taddeucci v. Weitzner
...was on or after July 1, 1975, the two years and six month limitation imposed by the present CPLR § 214-a would apply, (Szajna v. Rand, 75 A.D.2d 617, 427 N.Y.S.2d 57). Recent case law has addressed the circumstances under which an IUD may be held to constitute a foreign object as contemplat......
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...of CPLR 214-a, a prosthetic device could be deemed a "foreign object" if the device broke after implantation (see, e.g., Szajna v. Rand, 75 A.D.2d 617, 427 N.Y.S.2d 57 [broken intramedullary nail]; Murphy v. St. Charles Hosp., 35 A.D.2d 64, 312 N.Y.S.2d 978, cited with approval in Dobbins v......