| Santana v St. Vincent Catholic Med. Ctr. of N.Y. |
| 2009 NY Slip Op 06528 [65 AD3d 1119] |
| September 15, 2009 |
| Appellate Division, Second Department |
| Pedro Santana, Respondent, v St. Vincent CatholicMedical Center of New York, Appellant. |
—[*1] Lloyd F. Goldstein (Annette G. Hasapidis, South Salem, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated August 1, 2008, which denied its motionpursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.
Ordered that the order is reversed, on the law, with costs, and the motion pursuant to CPLR3211 (a) (5) to dismiss the complaint as time-barred is granted.
On November 19, 2002, the plaintiff's decedent, a 73-year-old cancer patient at the defendantSt. Vincent Catholic Medical Center of New York (hereinafter the defendant), allegedly wasinjured when he fell from his hospital bed. In September 2005, after the decedent's death, theplaintiff commenced this action to recover damages for the decedent's personal injuries. Thedefendant moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint, asserting that theplaintiff's claim sounded in medical malpractice and was barred by the statute of limitationsgoverning such actions (see CPLR 214-a). The Supreme Court denied the motion, andthe defendant appeals.
A cause of action to recover damages for medical malpractice accrues on the date of thealleged act, omission, or failure complained of, and is subject to a 2½-year statute oflimitations (see CPLR 214-a; Young v New York City Health & Hosps. Corp.,91 NY2d 291, 295-296 [1998]); a three-year statute of limitations applies to an actionalleging ordinary negligence (CPLR 214 [5]). "[T]he distinction between medical malpracticeand negligence is a subtle one, for medical malpractice is but a species of negligence and norigid analytical line separates the two . . . [A] claim sounds in medical malpracticewhen the challenged conduct constitutes medical treatment or bears a substantial relationship tothe rendition of medical treatment by a licensed physician. By contrast, when the gravamen ofthe complaint is not negligence in furnishing medical treatment to a patient, but the hospital'sfailure in fulfilling a different duty, the claim sounds in negligence" (Weiner v Lenox HillHosp., 88 NY2d 784, 787-788 [1996] [internal quotation marks and citations omitted]; see Pacio v Franklin Hosp., 63 AD3d1130 [2009]).[*2]
Here, the complaint, as amplified by the bill ofparticulars (see Grassman v Slovin, 206 AD2d 504 [1994]; Stanley v Lebetkin,123 AD2d 854 [1986]), seeks to impose liability on the defendant for its alleged failure toassess the level of supervision, nursing care, and security required for the decedent after it hadadministered pain medication to him. The allegations therefore sound in medical malpractice, notordinary negligence (see Scott v Uljanov, 74 NY2d 673, 674-675 [1989]; Caso v St. Francis Hosp., 34 AD3d714, 715 [2006]; Rey v Park View Nursing Home, 262 AD2d 624, 627 [1999];Fox v White Plains Med. Ctr., 125 AD2d 538 [1986]).
Since the action sounds in medical malpractice and is therefore subject to the 2½-yearstatute of limitations provided by CPLR 214-a, the Supreme Court should have granted thedefendant's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint as time-barred.Spolzino, J.P., Santucci, Florio and Balkin, JJ., concur.