| Plain v Vassar Bros. Hosp. |
| 2014 NY Slip Op 02023 [115 AD3d 922] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Heather Plain, Respondent, v Vassar BrothersHospital et al., Appellants, et al., Defendant. |
—[*1] Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y.(Christopher P. Keenan and Timothy M. Smith of counsel), for appellant Mid HudsonMedical Group, P.C. 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 defendantsVassar Brothers Hospital and Mid Hudson Medical Group, P.C., separately appeal, aslimited by their briefs, from so much of an order of the Supreme Court, Dutchess County(Lubell, J.), dated November 29, 2012, as denied their separate motions pursuant toCPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against each of them astime-barred.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs, and the separate motions of the defendants Vassar Brothers Hospital and MidHudson Medical Group, P.C., pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against each of them as time-barred are granted.
According to the plaintiff, in July 2008, she sought treatment for her right knee andhip from the defendant Spyros Panos, a physican employed by the defendant MidHudson Medical Group, P.C. (hereinafter Mid Hudson). On August 28, 2008, Panosperformed surgery on the plaintiff's right knee at the defendant Vassar Brothers Hospital(hereinafter Vassar). On November 22, 2011, the plaintiff commenced this action againstPanos, Mid Hudson, and Vassar, inter alia, to recover damages for medical malpractice.Vassar and Mid Hudson separately moved pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against each of them as time-barred.
"In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred bythe applicable statute of limitations, a defendant bears the initial burden ofdemonstrating, prima facie, that the time within which to commence the action hasexpired. The burden then shifts to the plaintiff to raise an issue of fact as to whether thestatute of limitations was tolled or was otherwise inapplicable, or whether it actuallycommenced the action within the applicable limitations period" (Matteawan On Main, Inc. v City ofBeacon, 109 AD3d 590, 590 [2013] [citations omitted]). Here, it is undisputedthat the action was commenced after the applicable limitations period had lapsed.However, the plaintiff contends that the separate motions of Vassar and Mid Hudsonwere properly denied on the ground that discovery might have revealed evidence thatwould estop Vassar and Mid Hudson from raising a statute of limitations defensebecause they fraudulently concealed their wrongdoing from the plaintiff so as to preventher from timely commencing a medical malpractice action (see CPLR 3211 [d];Corsello v Verizon N.Y.,Inc., 18 NY3d 777, 789 [2012]).
In opposition to Vassar's motion, the plaintiff's counsel stated that, with furtherdiscovery, the plaintiff hoped to be able to establish that Vassar possessed knowledge ofPanos's medical malpractice, and that this knowledge, coupled with Vassar's "allowing"Panos "to continue" his malpractice to the detriment of other patients, was a fraudperpetrated by Vassar on the public that should have estopped it from asserting a statuteof limitations defense. Even if the plaintiff were able to establish these facts, however,they would not give rise to an estoppel. Where the alleged concealment consists of"nothing but defendants' failure to disclose the wrongs they had committed, [thedefendants are] not estopped from pleading a statute of limitations defense" (Corsellov Verizon N.Y., Inc., 18 NY3d at 789). A plaintiff must allege a "later fraudulentmisrepresentation" made "for the purpose of concealing the former tort" (Ross v Louise Wise Servs.,Inc., 8 NY3d 478, 491 [2007]; see Zumpano v Quinn, 6 NY3d 666, 674-675 [2006]).Since the facts that the plaintiff hoped to establish after discovery would not estop Vassarfrom asserting a statute of limitations defense, the Supreme Court should have grantedVassar's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar asasserted against it as time-barred.
In opposition to Mid Hudson's motion, the plaintiff's attorney stated that, after thesurgery, Panos falsely assured the plaintiff that his treatment was effective, and thatPanos's misrepresentations could be imputed to his employer, Mid Hudson, so as to estopMid Hudson from raising a statute of limitations defense (see Simcuski v Saeli,44 NY2d 442, 448 [1978]; Giannetto v Knee, 82 AD3d 1043, 1045-1046 [2011]).However, the plaintiff's attorney did not have personal knowledge of the facts; thus, hisaffirmation had no evidentiary value (see Wolfson v Rockledge Scaffolding Corp., 67 AD3d1001, 1002 [2009]; Morales v Coram Materials Corp., 51 AD3d 86, 96[2008]). Moreover, since the facts essential to opposing Mid Hudson's motion in thisregard were in the possession of the plaintiff, they did not constitute facts which "[couldnot] then be stated" (CPLR 3211 [d]). Accordingly, the Supreme Court should havegranted Mid Hudson's motion pursuant to CPLR 3211 (a) (5) to dismiss the complaintinsofar as asserted against it as time-barred. Rivera, J.P., Lott, Roman and Hinds-Radix,JJ., concur.