Moschetti v. Saxe

199 A.D.2d 79, 605 N.Y.S.2d 47

Opinion

Order, Supreme Court (Stanley Sklar, J.), entered on or about October 5, 1992, which granted defendants’ motion for summary judgment dismissing the complaint as barred by the Statute of Limitations, unanimously affirmed, without costs.

We agree with the IAS Court that this case, involving the alleged negligence of a doctor in failing to remove an IUD previously implanted, cannot be distinguished from Rodriguez v Manhattan Med. Group (77 NY2d 217), involving the alleged negligence of a doctor in failing to remove an IUD previously implanted by another doctor, and that the alleged negligence did not transform the IUD from a "fixation device” into a "foreign object” so as to make the delayed discovery rule of CPLR 214-a applicable (see also, Rockefeller v Moront, 81 NY2d 560). Accordingly, the action was properly dismissed as time-barred. Concur—Murphy, P. J., Sullivan, Ross and Asch, JJ.