| Bennie v Hudson Val. Ctr. at St. Francis, LLC |
| 2014 NY Slip Op 02006 [115 AD3d 899] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Salvatore Bennie, Respondent, v Hudson ValleyCenter at Saint Francis, LLC, et al., Defendants, and Robert Morgantini R.N.F.A.,Appellant. |
—[*1] Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantRobert Morgantini appeals, as limited by his brief, from so much of an order of theSupreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied hismotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst him as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Robert Morgantini pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against him as time-barred is granted.
According to the plaintiff, on August 1, 2007, he sought treatment for his leftshoulder from the defendant physician Spyros Panos. On November 27, 2007, Panosperformed surgery on the plaintiff's left shoulder. During the surgery, Panos was assistedby the defendant Robert Morgantini, a registered nurse. On November 22, 2011, theplaintiff commenced this action against Morgantini, among others, to recover damagesfor medical malpractice.
The Supreme Court should have granted Morgantini's motion pursuant to CPLR3211 (a) (5) to dismiss the complaint insofar as asserted against him as time-barred.Morgantini met his threshold burden of demonstrating, prima facie, that the complaintwas time-barred. In opposition, the plaintiff failed to raise a question of fact as towhether the statute of limitations was tolled or otherwise inapplicable, or whether heactually commenced the action within the applicable limitations period (see Williams v New York CityHealth & Hosps. Corp., 84 AD3d 1358, 1359 [2011]; Rakusin v Miano, 84 AD3d1051, 1052 [2011]). Contrary to the plaintiff's contention, the motion was notproperly denied on the ground that Morgantini was estopped from raising a statute oflimitations defense. In opposition to Morgantini's motion, the plaintiff failed to presentevidence that Morgantini made a misrepresentation after the subject surgery for thepurpose of concealing the alleged health care malpractice (see Plain v Vassar Bros.Hosp., 115 AD3d 922 [2014] [decided herewith]). Further, the plaintiff failed to establish that factsessential to justify opposition to [*2]Morgantini's motionmay exist, but, absent discovery, could not be stated (see CPLR 3211 [d]).Rivera, J.P., Lott, Roman and Hinds-Radix, JJ., concur.