Monko v. St. John's Queens Hospital

New York Supreme Court

Monko v. St. John's Queens Hospital

41 Misc. 2d 993, 246 N.Y.S.2d 511, 1963 N.Y. Misc. LEXIS 1300

CourtNew York Supreme Court

DecidedDecember 10, 1963

StatusPublished

Cited by5 cases

This text of 41 Misc. 2d 993 (Monko v. St. John's Queens Hospital) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Monko v. St. John's Queens Hospital, 41 Misc. 2d 993, 246 N.Y.S.2d 511, 1963 N.Y. Misc. LEXIS 1300 (N.Y. Super. Ct. 1963).

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Opinion

Vincent A. Lupiano, J.

This application was made pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice for dismissal of the complaint upon the ground that maintenance of the action is time-barred. This is a malpractice action. The last date of treatment is July 25, 1943; the action was commenced August 6, 1962. On that basis, it is and must be conceded that maintenance of the action is time-barred. However, plaintiff invokes the discovery rule as basis for computation of time which was rejected as a matter for legislative action in Schwartz v. Heyden Newport Chem. Corp. (12 N Y 2d 212). This motion was brought on by notice dated August 23, 1962. Plaintiff now relies on section 203 of the Civil Practice Law and Rules which states the discovery rule. It is not applicable to malpractice cases and nothing contained in the Civil Practice Law and Rules indicates a purpose to legislate it for applica[994]*994tion to such, cases. To the extent the problem was considered and acted upon, it is reflected in section 214 of the Civil Practice Law and Rules fixing the limitation at three years. To consider the limitation was increased and in addition imposed on the discovery rule is unsound. Moreover, it would be unjust and prejudicial to apply the Civil Practice Law and Rules rather than the Civil Practice Act provision (CPLR 10003). The urgent plea which plaintiff now makes was made in Schwartz (supra) and rejected. Plaintiff requests that the court adopt the reasoning of the dissenting opinion there. The Legislature has not done so and the court does not. The motion is granted.

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Vincent A. Lupiano, J.

This application was made pursuant to subdivision 5 of rule 107 of the Rules of Civil Practice for dismissal of the complaint upon the ground that maintenance of the action is time-barred. This is a malpractice action. The last date of treatment is July 25, 1943; the action was commenced August 6, 1962. On that basis, it is and must be conceded that maintenance of the action is time-barred. However, plaintiff invokes the discovery rule as basis for computation of time which was rejected as a matter for legislative action in Schwartz v. Heyden Newport Chem. Corp. (12 N Y 2d 212). This motion was brought on by notice dated August 23, 1962. Plaintiff now relies on section 203 of the Civil Practice Law and Rules which states the discovery rule. It is not applicable to malpractice cases and nothing contained in the Civil Practice Law and Rules indicates a purpose to legislate it for applica[994]*994tion to such, cases. To the extent the problem was considered and acted upon, it is reflected in section 214 of the Civil Practice Law and Rules fixing the limitation at three years. To consider the limitation was increased and in addition imposed on the discovery rule is unsound. Moreover, it would be unjust and prejudicial to apply the Civil Practice Law and Rules rather than the Civil Practice Act provision (CPLR 10003). The urgent plea which plaintiff now makes was made in Schwartz (supra) and rejected. Plaintiff requests that the court adopt the reasoning of the dissenting opinion there. The Legislature has not done so and the court does not. The motion is granted.

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Bluebook (online)

41 Misc. 2d 993, 246 N.Y.S.2d 511, 1963 N.Y. Misc. LEXIS 1300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monko-v-st-johns-queens-hospital-nysupct-1963.

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