| Nelson v Hudson Val. Ctr. at St. Francis, LLC |
| 2014 NY Slip Op 02018 [115 AD3d 917] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Bernadette Nelson, Respondent, v Hudson ValleyCenter at Saint Francis, LLC, Appellant, et al., Defendants. |
—[*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 defendantHudson Valley Center at Saint Francis, LLC, appeals, as limited by its brief, from somuch of an order of the Supreme Court, Dutchess County (Lubell, J.), dated November29, 2012, as denied its motion pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against 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 Hudson Valley Center at Saint Francis, LLC, pursuant toCPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred isgranted.
According to the plaintiff, on December 15, 2008, she sought treatment for her rightknee from the defendant physician Spyros Panos. On January 27, 2009, Panos performedsurgery on the plaintiff's knee at Hudson Valley Center at Saint Francis, LLC (hereinafterHudson Valley). On February 1, 2012, the plaintiff commenced this action againstHudson Valley, among others, inter alia, to recover damages for medical malpractice.
The Supreme Court should have granted Hudson Valley's motion pursuant to CPLR3211 (a) (5) to dismiss the complaint insofar as asserted against it as time-barred.Contrary to the plaintiff's contention, the motion was not properly denied on the groundthat discovery might have revealed evidence that would estop Hudson Valley fromraising a statute of limitations defense. In opposition to Hudson Valley's motion, theplaintiff's counsel stated that, with further discovery, the plaintiff hoped to be able toestablish that Hudson Valley possessed knowledge of Panos's medical malpractice andfailed to timely notify the plaintiff so that she could obtain proper care, and that thiswrongdoing on the part of Hudson Valley estopped it from asserting a statute oflimitations defense. Even if the plaintiff were able to establish these facts, however, theywould 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.