Tracy v. Vassar Bros. Hosp.

• Decision Date: 08 July 2015
• Docket Number: 2013-01541
• Citation: 130 A.D.3d 713,2015 N.Y. Slip Op. 05932,13 N.Y.S.3d 226
• Parties: Eileen TRACY, respondent, v. VASSAR BROTHERS HOSPITAL, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 713
13 N.Y.S.3d 226
2015 N.Y. Slip Op. 05932

Eileen TRACY, respondent
v.
VASSAR BROTHERS HOSPITAL, appellant, et al., defendants.

2013-01541

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

July 8, 2015.

13 N.Y.S.3d 227

Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), for appellant.

Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), for respondent.

PETER B. SKELOS, J.P., RUTH C. BALKIN, CHERYL E. CHAMBERS, ROBERT J. MILLER, JJ.

Opinion

130 A.D.3d 713

In an action, inter alia, to recover damages for medical malpractice, the defendant Vassar Brothers Hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied its motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Vassar Brothers Hospital which was pursuant to CPLR 3211(a)(5) to dismiss the causes of action alleging medical malpractice insofar as asserted against it as time-barred, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

130 A.D.3d 714

The plaintiff sought treatment for her right shoulder from the defendant physician, Spyros Panos. On February 5, 2009, Panos performed surgery on the plaintiff's shoulder at the defendant Vassar Brothers Hospital (hereinafter Vassar). On January 26, 2012, the plaintiff commenced this action against Vassar, among others.

Vassar moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it, contending that the action was barred by the 2 ½–year statute of limitations applicable to medical malpractice causes of action (see CPLR 214–a ). The Supreme Court denied the motion, concluding that the complaint set forth causes of action alleging both medical malpractice, the dismissal of which would be premature, and ordinary negligence, governed by a 3–year statute of limitations (see CPLR 214[5] ) and, thus, the negligence causes of action were not time-barred.

The Supreme Court...