| Cellupica v Bruce |
| 2008 NY Slip Op 01681 [48 AD3d 1020] |
| February 28, 2008 |
| Appellate Division, Third Department |
| Mechal Cellupica et al., Respondents, v Melody Bruce et al.,Appellants. |
—[*1] Roemer, Wallens & Mineaux, Albany (Earl T. Redding of counsel), forrespondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Kramer, J.), entered August 20,2007 in Schenectady County, which, among other things, denied defendants' motion for summaryjudgment dismissing the complaint.
On February 13, 2003, defendant Melody Bruce (hereinafter defendant) performed a surgicalprocedure to remove a mass from the left ovary of plaintiff Mechal Cellupica (hereinafterplaintiff). After the procedure, plaintiff was told both of her ovaries were removed. Plaintiff sawdefendant for a postsurgical follow-up appointment on March 12, 2003 and continued to treatwith defendant for postsurgical incision issues and complaints of left side pain until July 21,2003. Sometime thereafter, still complaining of pain, plaintiff was treated by another doctor andultimately underwent additional surgery to remove what plaintiff claims was ovarian tissue.
On February 10, 2006, plaintiff and her husband, derivatively, commenced this action againstdefendants with a summons and notice. Defendants served a notice of appearance and demandfor complaint and, after no complaint was received, moved to dismiss plaintiffs' claims. Plaintiffsthereafter served a complaint alleging claims for medical malpractice. Supreme Court denieddefendants' motion to dismiss and directed them to answer plaintiffs' complaint. Defendants'answer asserted several affirmative defenses, including the statute of limitations, and [*2]defendants subsequently moved for summary judgment dismissingthe complaint as untimely. In response to the motion, plaintiffs argued that there should be a tollof the statute of limitations claiming that defendant had represented that plaintiff would no longerrequire gynecological treatment because she no longer had ovaries.
At oral argument, Supreme Court, sua sponte, permitted plaintiffs to amend their complaintto assert a claim against defendants alleging fraudulent concealment of medical malpractice. Thecourt subsequently denied defendants' motion for summary judgment, prompting this appeal.
We reverse. Even if it is assumed that plaintiff last treated with defendant on July 28,2003—the date she last had contact with defendant—this action was notcommenced until after the 2½-year statute of limitations had expired. Plaintiffs have failedto allege any facts that, if proven, would establish that defendants should be equitably estoppedfrom asserting the statute of limitations defense. Equitable estoppel applies as a bar to a statute oflimitations defense when a defendant's affirmative wrongdoing causes a plaintiff to delay incommencing an action (see Zumpano vQuinn, 6 NY3d 666, 673 [2006]). For estoppel to preclude the assertion of a statute oflimitations defense, plaintiffs must establish by clear and convincing evidence (see CentralFed. Sav. v Laurels Sullivan County Estates Corp., 145 AD2d 1, 6 [1989], lvdismissed 74 NY2d 944 [1989], lv denied 76 NY2d 704 [1990]; see also Dombroski v Samaritan Hosp.,47 AD3d 80, 82 [2007]) that they failed to timely commence their action "due to a fraud,deception or misrepresentation perpetrated by defendant[s]" (Phillips v Dweck, 300AD2d 969, 969 [2002]; see Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; Giarratano v Silver, 46 AD3d1053, 1056 [2007]).
Plaintiffs failed to plead either fraud or fraudulent concealment in their complaint (seeFlorio v Cook, 48 NY2d 792, 793 [1979]; Immediate v St. John's Queens Hosp., 48NY2d 671, 672 [1979]). Moreover, in response to defendants' motion, plaintiffs offered noevidence that defendant in fact knew that she had not removed plaintiff's left ovary or that if sheknew, she intentionally withheld this information and misrepresented this fact to plaintiff (seeSimcuski v Saeli, 44 NY2d at 453; Atton v Bier, 12 AD3d 240, 241 [2004]). Without such evidence,plaintiffs' proposed amendment of the complaint to allege a claim of fraudulent concealment hasno merit (see Dionisio v Geo. De RueContrs., Inc., 38 AD3d 1172, 1174 [2007]; Smith v Bessen, 161 AD2d 847, 848[1990]), and Supreme Court erred by granting plaintiffs leave to file an amended complaint.
Accordingly, plaintiffs' complaint should have been dismissed as untimely.
Mercure, J.P., Peters, Carpinello and Rose, JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion granted, summary judgment awarded to defendants and complaintdismissed.