Lenny v. Loehmann

78 A.D.2d 813, 433 N.Y.S.2d 135, 1980 N.Y. App. Div. LEXIS 13484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 18, 1980
• Status: Published

Opinions

Order, Supreme Court, Bronx County, entered March 11, 1980, denying defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 5), is reversed, on the law, and the motion to dismiss the complaint is granted, and the complaint is dismissed, without costs. The issue in this case is whether the two- and one-half year Statute of Limitations for medical malpractice cases (CPLR 214-a) or the three-year limitation for negligence actions (CPLR 214) is applicable. In our view the two- and one-half year medical malpractice statute is the applicable statute. It is here claimed that plaintiff, a patient of defendant, a physician, was injured when she fell out of bed in the hospital because the bed’s side rails were not raised, and that defendant’s physician was negligent in failing to instruct that the side rails be raised, or in failing to check the condition of the side rails after they had been put up, or to supervise plaintiff’s movements to and from the bed. The alleged breach by defendant is a claim of a breach of his duty as a physician arising out of the physician-patient relationship, a breach of his duty as a physician to take care of his patient. In our view, this is a claim for medical malpractice and not a claim for ordinary negligence of a kind that would not be included within medical malpractice. It is thus barred by the Statute of Limitations applicable to medical malpractice actions. Concur — Murphy, P. J., Sandler, Ross and Silverman, JJ.