| Piccoli v Panos |
| 2015 NY Slip Op 05925 [130 AD3d 704] |
| July 8, 2015 |
| Appellate Division, Second Department |
[*1]
| Linda Piccoli, Respondent, v Spyros Panos etal., Defendants, and Vassar Brothers Hospital, Appellant. |
Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner ofcounsel), for appellant.
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 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 modified, on the law, by deleting the provision thereofdenying that branch of the motion of the defendant Vassar Brothers Hospital which waspursuant to CPLR 3211 (a) (5) to dismiss the causes of action alleging medicalmalpractice insofar as asserted against it as time-barred, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofaras appealed from, without costs or disbursements.
The plaintiff sought treatment for her left shoulder from the defendant physician,Spyros Panos. On April 2, 2009, Panos performed surgery on the plaintiff's shoulder atthe defendant Vassar Brothers Hospital (hereinafter Vassar). On January 26, 2012, theplaintiff commenced this action against Vassar, among others.
Vassar moved pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar asasserted against it, contending that the action was barred by the 2
The Supreme Court should have granted that branch of Vassar's motion which waspursuant to CPLR 3211 (a) (5) to dismiss the causes of action alleging medicalmalpractice insofar as asserted against it. Contrary to the plaintiff's contention, withrespect to the medical malpractice causes of action, the motion was not properly deniedon the ground that discovery might have revealed evidence that would estop Vassar fromraising a statute of limitations defense. In [*2]oppositionto Vassar's motion, the plaintiff argued that, with further discovery, she hoped to be ableto establish that Vassar possessed knowledge of Panos's medical malpractice, and thatthis knowledge, coupled with Vassar allowing Panos to continue his malpractice to thedetriment of other patients, was a fraud perpetrated by Vassar on the public that estoppedit from asserting a statute of limitations defense. However, even if the plaintiff were ableto establish these facts, they would not give rise to an estoppel, since they did not amountto later fraudulent misrepresentations made for the purpose of concealing the former tort(see Saretto v Panos, 120AD3d 786, 787 [2014]; Plain v Vassar Bros. Hosp., 115 AD3d 922, 923 [2014]; Butcher v Panos, 115 AD3d900, 901 [2014]). Therefore, the causes of action alleging medical malpracticeinsofar as asserted against Vassar should have been dismissed as time-barred.
Contrary to Vassar's contention, however, the Supreme Court properly concludedthat, in addition to the medical malpractice allegations, the complaint also set forthallegations of ordinary negligence against Vassar, which were not time-barred. For thereasons stated in the companion appeal (see Tracy v Vassar Bros. Hosp., 130AD3d 713 [2015] [decided herewith]), the allegations in the complaint pertaining to the numberof surgeries Panos was scheduling for any given day, the allegations that Vassar failed toestablish procedures regarding the number of surgeries that could be scheduled for agiven day, and the allegations that Vassar failed to investigate or respond to warningsand complaints from its employees regarding Panos's practices generally, all sound inordinary negligence rather than medical malpractice (see Weiner v Lenox HillHosp., 88 NY2d 784, 788-789 [1996]; Bleiler v Bodnar, 65 NY2d 65, 73[1985]). Accordingly, the Supreme Court properly denied that branch of Vassar's motionwhich was to dismiss, as time barred, the causes of action alleging ordinary negligence.Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.