| Butcher v Panos |
| 2014 NY Slip Op 02007 [115 AD3d 900] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Keith Butcher, Respondent, v Spyros Panos, M.D.,et al., Defendants, and Vassar Brothers Hospital, Appellant. |
—[*1] Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee and John T. Wisell,Jr., of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantVassar Brothers Hospital appeals, as limited by its brief, from so much of an order of theSupreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied itsmotion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as assertedagainst it as time-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Vassar Brothers Hospital pursuant to CPLR 3211 (a) (5)to dismiss the complaint insofar as asserted against it as time-barred is granted.
According to the plaintiff, on or about November 2007, he sought treatment for hisright knee from the defendant physician Spyros Panos. On December 27, 2007, Panosperformed surgery on the plaintiff's knee at Vassar Brothers Hospital (hereinafterVassar). On February 1, 2012, the plaintiff commenced this action against Vassar, amongothers, inter alia, to recover damages for medical malpractice.
The Supreme Court should have granted Vassar's motion pursuant to CPLR 3211 (a)(5) to dismiss the complaint insofar as asserted against it as time-barred. Contrary to theplaintiff's contention, the motion was not properly denied on the ground that discoverymight have revealed evidence that would estop Vassar from raising a statute oflimitations defense. In opposition to Vassar's motion, the plaintiff's counsel stated that,with further discovery, the plaintiff hoped to be able to establish that Vassar possessedknowledge of Panos's medical malpractice, and that this knowledge, coupled withVassar's "allowing" Panos "to continue" his malpractice to the detriment of otherpatients, was a fraud perpetrated by Vassar on the public that estopped it from asserting astatute of limitations defense. Even if the plaintiff were able to establish these facts,however, they would not give rise to an estoppel (see Plain v Vassar Bros. Hosp.,115 AD3d 922 [2014] [decided herewith]). Rivera, J.P., Lott, Roman and Hinds-Radix, JJ., concur.