| Lettieri v Allen |
| 2009 NY Slip Op 00987 [59 AD3d 202] |
| February 10, 2009 |
| Appellate Division, First Department |
| Robert Lettieri, Appellant, v Answorth Allen, M.D., et al.,Respondents. |
—[*1] Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for respondents.
Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered April 30,2008, in an action for injuries allegedly sustained during surgery, dismissing the complaintpursuant to an order that granted defendants' motion for leave to amend their answers to assertthe affirmative defense of statute of limitations, and, upon amendment, to dismiss the complaintpursuant to CPLR 3211 (a) (5), unanimously affirmed, without costs.
The motion court properly granted defendants leave to amend their answer to raise theaffirmative defense of the statute of limitations (see CPLR 3025 [b]). Although themotion was made on the eve of trial and more than two years after defendants answered thecomplaint, given plaintiff's assertion that his intent from the inception of the action was to pursuea claim for battery, which is governed by a one-year statute of limitations (CPLR 215 [3]), hecannot reasonably claim to have been prejudiced or surprised by defendants' request to amendtheir answers (see Solomon HoldingCorp. v Golia, 55 AD3d 507 [2008]; Seda v New York City Hous. Auth., 181AD2d 469 [1992], lv denied 80 NY2d 759 [1992]). Furthermore, contrary to plaintiff'sargument that defendants waived the defense since they had notice of his intention to pursue abattery claim, the record shows that plaintiff consistently described his action as one for medicalmalpractice, not battery, and his allegations that defendants' decision to perform a tenotomyresulted from their misdiagnosis of a torn biceps tendon as a superior labrum anterior-posteriortear, coupled with his consistent assertions that defendants treated him without his [*2]informed consent, are the essence of a claim for lack of informedconsent (see Messina v Alan Matarasso, M.D., F.A.C.S., P.C., 284 AD2d 32[2001]). Concur—Andrias, J.P., Nardelli, Catterson, Acosta and DeGrasse, JJ.