Francisco v. Maniglia

57 A.D.2d 807, 394 N.Y.S.2d 701, 1977 N.Y. App. Div. LEXIS 11986

Opinion

Order, Supreme Court, New York County, entered on November 15, 1976, granting plaintiffs motion to strike defendant-appellant’s affirmative defense of Statute of Limitations and denying appellant’s cross motion to dismiss the complaint herein, unanimously modified, on the law, to the extent of denying plaintiffs motion to strike the above-mentioned affirmative defense, and as so modified, the order is affirmed, without costs and without disbursements. Special Term erroneously held that "the undisputed evidence submitted * * * demonstrated that the last date upon which plaintiff was treated by the moving defendant for the condition which is the subject of this action was April 16, 1973”. (Emphasis supplied.) While appellant admitted seeing plaintiff at the clinic of defendant hospital on April 16, 1973, he claims that he treated him on that occasion only for "an infection of the ear canal * * * totally unrelated to the operative procedure performed on the plaintiff * * * on the 22nd day of March, 1973.” A triable issue of fact is thus squarely presented requiring denial of plaintiffs motion to dismiss the appellant’s defense of Statute of Limitations. Concur — Birns, J. P., Silverman, Evans and Capozzoli, JJ.