Immediate v. St. John's Queens Hospital

397 N.E.2d 385, 48 N.Y.2d 671, 421 N.Y.S.2d 875, 1979 N.Y. LEXIS 2331

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Concededly, this medical malpractice action for wrongful death against respondent physician was not commenced within two years after decedent’s death. Appellant’s assertion in this court that the physician is estopped from asserting the Statute of Limitations by reason of his fraudulent concealment of his wrongdoing must be rejected as appellant did not assert a claim of fraud or fraudulent concealment of the alleged malpractice. Furthermore, no evidentiary facts supporting any such claim were submitted to the court by appellant in opposition to respondent’s motion for summary judgment. (Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281.)

Appellant’s contention that respondent insufficiently pleaded the Statute of Limitations is also without merit. It was sufficient under CPLR 3013 that respondent pleaded the "statute of limitations” as a defense; it was not required to identify the statutory section relied on or to specify the applicable period of limitations. Thus, respondent’s motion was properly granted.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

Order affirmed.