| Bennett v Panos |
| 2014 NY Slip Op 05935 [120 AD3d 729] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Mary Alice Bennett, Respondent, v SpyrosPanos et al., Defendants, and Mid Hudson Medical Group, P.C., et al.,Appellants. |
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.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Judy C.Selmeci, Marshal S. Endick, and Donna Marie Baloy of counsel), for appellant RobertMorgantini.
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, and the defendant Mid Hudson Medical Group, P.C.,separately appeals, as limited by its brief, from so much of the same order as denied thatbranch of its motion which was pursuant to CPLR 3211 (a) (7) to dismiss the claims inthe complaint to recover damages for negligent hiring and supervision insofar as assertedagainst it.
Ordered that the order is reversed insofar as appealed from by the defendant RobertMorgantini, on the law, and his motion pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint insofar as asserted against him as time-barred is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant MidHudson Medical Group, P.C.; and it is further,
Ordered that one bill of costs is awarded to the defendant Robert Morgantini, payableby the plaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendantMid Hudson Medical Group, P.C.
According to the plaintiff, in or about December 2008, she sought treatment for herright hip from the defendant Spyros Panos, a physician employed by the defendant MidHudson Medical Group, P.C. (hereinafter Mid Hudson). On June 23, 2009, Panosperformed surgery on the plaintiff's right hip. During the surgery, Panos was assisted bythe defendant Robert Morgantini, a [*2]registered nurse.On February 24, 2012, the plaintiff commenced this action against Morgantini and MidHudson, among others, inter alia, to recover damages for 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. Insupport of his motion, Morgantini established, prima facie, that the action wascommenced after the expiration of the applicable 2
However, the Supreme Court properly denied that branch of Mid Hudson's motionwhich was pursuant to CPLR 3211 (a) (7) to dismiss the claims in the complaint torecover damages for negligent hiring and supervision insofar as asserted against it(see Saretto v Panos, 120 AD3d 786 [2014] [decided herewith]). Dickerson, J.P., Leventhal, Austin and Hinds-Radix, JJ.,concur.