| De La Cruz v Nour |
| 2015 NY Slip Op 09247 [134 AD3d 883] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Ana De La Cruz et al.,Respondents, v Mohamed K. Nour, M.D., et al.,Appellants. |
Vaslas Lepowsky Hauss & Danke LLP, Staten Island, NY (Neil F. Schreffler ofcounsel), for appellants.
Richard J. Katz, LLP, New York, NY (Jonathan A. Rapport of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice and negligence,the defendants appeal from an order of the Supreme Court, Kings County (Solomon, J.),dated August 20, 2012, which denied their motion for summary judgment dismissing thecomplaint as time-barred.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted by the plaintiff Ana De La Cruz against thedefendant Mohamed K. Nour, and substituting therefor a provision granting that branchof the motion; as so modified, the order is affirmed, without costs or disbursements.
In December 2006, the defendant Mohamed K. Nour began treating the plaintiff AnaDe La Cruz (hereinafter the plaintiff) and her daughter, the infant plaintiff, for injuriessustained in a car accident. Nour was employed by the defendant Advanced MedicalCare (hereinafter Advanced). On March 29, 2007, the plaintiffs went to Nour's office todiscuss the results of X rays of the infant plaintiff's leg. According to the plaintiffs, Noursexually assaulted the plaintiff during the examination, and the infant plaintiff witnessedthat act. The plaintiffs commenced this action, inter alia, to recover damages for medicalmalpractice and negligence on October 3, 2008—about 1
The defendants moved for summary judgment dismissing the complaint, assertingthat the complaint sounded in intentional tort, rather than in malpractice or negligence,and as such, the plaintiffs' causes of action were subject to a one-year statute oflimitations, and were, therefore, time-barred. The Supreme Court denied the defendants'motion.
The Supreme Court erred in denying that branch of the defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted by the plaintiffagainst Nour. The defendants established, prima facie, that the one-year statute oflimitations for intentional torts (see CPLR 215 [3]) applied to the plaintiff'scauses of action against Nour, through the plaintiff's deposition testimony, whichestablished that the injuries, insofar as asserted by her, stemmed from [*2]the alleged intentional assault by Nour, not from themedical services he rendered (see Fragosa v Haider, 17 AD3d 526, 527 [2005]; seealso Trott v Merit Dept. Store, 106 AD2d 158, 160 [1985]). The plaintiffs failed toraise a triable issue of fact in opposition.
However, the Supreme Court properly denied that branch of the defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted by theplaintiff against Advanced. While the plaintiff's damages may have been caused byNour's alleged assault, liability against Advanced is not based on an allegation that itintentionally harmed the plaintiff, but that it was negligent (see Green v EmmanuelAfrican M.E. Church, 278 AD2d 132 [2000]). Thus, the defendants failed toestablish, prima facie, that the three-year statute of limitations for negligence (seeCPLR 214) did not apply to the causes of action interposed by the plaintiff againstAdvanced (see N.X. v Cabrini Med. Ctr., 97 NY2d 247, 250-251 [2002]; Santo B. v Roman CatholicArchdiocese of N.Y., 51 AD3d 956, 957-958 [2008]).
The Supreme Court also properly denied that branch of the defendants' motion whichwas for summary judgment dismissing the complaint insofar as asserted by the infantplaintiff, as they failed to establish their prima facie entitlement to judgment as a matterof law. The statutes of limitations applicable to the infant plaintiff's claims are tolled byCPLR 208, as she is still an infant.
The defendants' remaining contention, raised in point III of their brief, was not asubject of the defendants' motion for summary judgment and, therefore, is not properlybefore this Court. Rivera, J.P., Leventhal, Miller and Duffy, JJ., concur.