Szajna v. Rand
| Decision Date | 29 June 1987 |
| Citation | 131 A.D.2d 840,517 N.Y.S.2d 201 |
| Parties | Dean M. SZAJNA, Respondent, v. Ellis D. RAND, M.D., et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Martin, Clearwater & Bell, New York City (Joseph L. DeMarzo, of counsel), for appellants.
Peter E. Tangredi, c/o Pasternack & Popish, P.C., Brooklyn (Arnold E. DiJoseph III, of counsel), for respondent.
Before THOMPSON, J.P., and WEINSTEIN, EIBER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Orgera, J.), dated August 5, 1986, which denied their motion for summary judgment dismissing the complaint as barred by the applicable Statute of Limitations.
ORDERED that the order is affirmed, with costs.
While we disagree with Special Term to the extent that it held that the doctrine of the law of the case necessarily bars reconsideration of the Statute of Limitations issue, we nevertheless affirm the order denying the defendants' motion for summary judgment for the reasons which follow.
We note, at the outset, that the doctrine of law of the case is " 'not an absolute mandate on the court', since it may be 'ignored' in 'extraordinary circumstances' vitiating its effectiveness as a rule fostering orderly convenience * * * such as a change in the law" (see, Foley v. Roche, 86 A.D.2d 887, 447 N.Y.S.2d 528 appeal denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147, quoting from Politi v. Irvmar Realty Corp., 13 A.D.2d 469, 212 N.Y.S.2d 444). Although we held in a previous appeal involving these litigants that the insertion of an intramedullary nail, which is a fixation device, would fall within the ambit of the foreign object exception to the Statute 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 respect to claims which arose prior to July 1, 1975, the effective date of CPLR 214-a" (see, Mitchell v. Abitol, 130 A.D.2d 633, 515 N.Y.S.2d 810; Lombardi v. DeLuca, 130 A.D.2d 632, 515 N.Y.S.2d 811; see also, Goldsmith v. Howmedica, 67 N.Y.2d 120, 500 N.Y.S.2d 640, 491 N.E.2d 1097). Accordingly, since the analysis employed by this court in the prior appeal no longer reflects the current state...
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