Gross v. Wise

Appellate Division of the Supreme Court of New York

Gross v. Wise

16 A.D.2d 682, 227 N.Y.S.2d 523, 1962 N.Y. App. Div. LEXIS 10178

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 23, 1962

StatusPublished

This text of 16 A.D.2d 682 (Gross v. Wise) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gross v. Wise, 16 A.D.2d 682, 227 N.Y.S.2d 523, 1962 N.Y. App. Div. LEXIS 10178 (N.Y. Ct. App. 1962).

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Opinion

In an action to recover damages alleged to have been sustained as the result of malpractice, plaintiff appeals from a judgment of the Supreme Court, Richmond County, entered November 22, 1961, which dismissed his complaint upon the opening statement of his counsel to the jury on the trial, and upon such counsel’s offer of proof to the court in the absence of the jury. Judgment affirmed, without costs. In his offer of proof plaintiff’s counsel conceded that the last alleged act of malpractice occurred on July 16, 1954 and that, while treatment was rendered by defendant subsequent thereto on at least 39 occasions until April of 1957, there was no claim by plaintiff that this latter treatment was improper. The action was commenced in July, 1957. In our opinion, based on the offer of proof, the alleged malpractice was not a continuing wrong; hence, the action is barred by the two-year limitation period (Civ. Prac. Act, § 50, subd. 1; Hammer v. Rosen, 7 N Y 2d 376; Nervick v. Fine, 195 Misc. 464, affd. 275 App. Div. 1043; Conklin v. Draper, 229 App. Div. 227, affd. 254 N. Y. 620; Matthews v. Pisani, 8 A D 2d 854, motion for leave to appeal denied 7 N Y 2d 708). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

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In an action to recover damages alleged to have been sustained as the result of malpractice, plaintiff appeals from a judgment of the Supreme Court, Richmond County, entered November 22, 1961, which dismissed his complaint upon the opening statement of his counsel to the jury on the trial, and upon such counsel’s offer of proof to the court in the absence of the jury. Judgment affirmed, without costs. In his offer of proof plaintiff’s counsel conceded that the last alleged act of malpractice occurred on July 16, 1954 and that, while treatment was rendered by defendant subsequent thereto on at least 39 occasions until April of 1957, there was no claim by plaintiff that this latter treatment was improper. The action was commenced in July, 1957. In our opinion, based on the offer of proof, the alleged malpractice was not a continuing wrong; hence, the action is barred by the two-year limitation period (Civ. Prac. Act, § 50, subd. 1; Hammer v. Rosen, 7 N Y 2d 376; Nervick v. Fine, 195 Misc. 464, affd. 275 App. Div. 1043; Conklin v. Draper, 229 App. Div. 227, affd. 254 N. Y. 620; Matthews v. Pisani, 8 A D 2d 854, motion for leave to appeal denied 7 N Y 2d 708). Ughetta, Acting P. J., Kleinfeld, Hill, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

16 A.D.2d 682, 227 N.Y.S.2d 523, 1962 N.Y. App. Div. LEXIS 10178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gross-v-wise-nyappdiv-1962.

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