Chao v. Westchester Medical Center Advanced Physicians Services

131 A.D.3d 1130, 16 N.Y.S.3d 758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 2015
• Docket: 2013-07953
• Status: Published

Opinion

In an action, inter alia, to recover damages for tortious interference with contract and breach of contract, the defendants Westchester Medical Center Advanced Physician Services, PC., Chitti Moorthy, and Zvi Lefkowitz appeal from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), dated July 8, 2013, which denied their motion pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied that branch of the motion of the defendants Westchester Medical Center Advanced Physician Services, P.C., Chitti Moorthy, and Zvi Lefkowitz (hereinafter collectively the appellants) which was to dismiss the first six causes of action insofar as asserted against them, sounding in tort, as time-barred (CPLR 3211 [a] [5]). In opposition to the appellants’ prima facie showing in support of that branch of their motion (see Beroza v Sallah Law Firm, P.C., 126 AD3d 742, 742 [2015]), the plaintiff demonstrated that there was a question of fact as to whether those causes of action were time-barred (see id.; Griffin v Perrotti, 121 AD3d 1041, 1041-1042 [2014]). Moreover, to the extent that the appellants contend for the first time on appeal that those causes of action are time-barred because they accrued before December 7, 2012, their contentions are not properly before this Court (see Ferdico v Pabone, 125 AD3d 718, 719 [2015]).

The appellants’ remaining contentions are without merit.

Balkin, J.P., Austin, Sgroi and LaSalle, JJ., concur.