Otero v. Presbyterian Hospital

Appellate Division of the Supreme Court of New York

Otero v. Presbyterian Hospital

240 A.D.2d 279, 658 N.Y.S.2d 624, 1997 N.Y. App. Div. LEXIS 6647

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

DecidedJune 19, 1997

StatusPublished

Cited by6 cases

This text of 240 A.D.2d 279 (Otero v. Presbyterian Hospital) 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

Otero v. Presbyterian Hospital, 240 A.D.2d 279, 658 N.Y.S.2d 624, 1997 N.Y. App. Div. LEXIS 6647 (N.Y. Ct. App. 1997).

Pincite

Opinion

—Order, Supreme Court, Bronx County (Anne Tar gum, J.), entered July 10,1995, which, inter alia, denied the cross-motion of defendant-appellant Montefiore Medical Center for summary judgment dismissing plaintiff’s verified complaint, unanimously modified, on the law, to the extent of dismissing plaintiff’s first, fourth and fifth causes of action as having been untimely commenced and the third cause of action for failure to state a cause of action and, as so modified, the order is affirmed, without costs.

Plaintiff’s first cause of action is based upon Montefiore’s alleged negligence in administering contaminated blood to plaintiff’s decedent some time prior to 1987, when he was diagnosed as being HIV positive. It has been consistently held that for Statute of Limitations purposes, the transmission of the HIV virus, whether via transfused blood or otherwise, is governed by the three-year period set forth in CPLR 214-c (2) (Matter of Plaza v Estate of Wisser, 211 AD2d 111, 117-118). To the extent that plaintiff’s fourth cause of action for wrongful death arises out of the same operative facts and dates, it was also untimely commenced. Likewise, plaintiff’s fifth cause of action is also untimely inasmuch as any tolling of the Statute of Limitations pursuant to the continuous treatment doctrine is personal to the recipient of such treatment and does not extend to a derivative claim for loss of services (Wojnarowski v Cherry, 184 AD2d 353, 354-355).

As to plaintiff’s third cause of action, it is well settled that concealment by a medical provider of its own purported negligence or malpractice does not state a separate cause of action for fraud where the alleged damages relate solely to the alleged negligence or málpractice (see, Spinosa v Weinstein, 168 AD2d 32, 42; Harkin v Culleton, 156 AD2d 19, lv dismissed 76 NY2d 936).

Reargument granted and the unpublished decision and order of this Court entered on February 4, 1997 (Appeal No. 58944) recalled and vacated and a new decision and order substituted therefor, decided simultaneously herewith. Concur—Murphy, P. J., Milonas, Williams, Tom and Andrias, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Bronx County (Anne Tar gum, J.), entered July 10,1995, which, inter alia, denied the cross-motion of defendant-appellant Montefiore Medical Center for summary judgment dismissing plaintiff’s verified complaint, unanimously modified, on the law, to the extent of dismissing plaintiff’s first, fourth and fifth causes of action as having been untimely commenced and the third cause of action for failure to state a cause of action and, as so modified, the order is affirmed, without costs.

Plaintiff’s first cause of action is based upon Montefiore’s alleged negligence in administering contaminated blood to plaintiff’s decedent some time prior to 1987, when he was diagnosed as being HIV positive. It has been consistently held that for Statute of Limitations purposes, the transmission of the HIV virus, whether via transfused blood or otherwise, is governed by the three-year period set forth in CPLR 214-c (2) (Matter of Plaza v Estate of Wisser, 211 AD2d 111, 117-118). To the extent that plaintiff’s fourth cause of action for wrongful death arises out of the same operative facts and dates, it was also untimely commenced. Likewise, plaintiff’s fifth cause of action is also untimely inasmuch as any tolling of the Statute of Limitations pursuant to the continuous treatment doctrine is personal to the recipient of such treatment and does not extend to a derivative claim for loss of services (Wojnarowski v Cherry, 184 AD2d 353, 354-355).

As to plaintiff’s third cause of action, it is well settled that concealment by a medical provider of its own purported negligence or malpractice does not state a separate cause of action for fraud where the alleged damages relate solely to the alleged negligence or málpractice (see, Spinosa v Weinstein, 168 AD2d 32, 42; Harkin v Culleton, 156 AD2d 19, lv dismissed 76 NY2d 936).

Reargument granted and the unpublished decision and order of this Court entered on February 4, 1997 (Appeal No. 58944) recalled and vacated and a new decision and order substituted therefor, decided simultaneously herewith. Concur—Murphy, P. J., Milonas, Williams, Tom and Andrias, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

240 A.D.2d 279, 658 N.Y.S.2d 624, 1997 N.Y. App. Div. LEXIS 6647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/otero-v-presbyterian-hospital-nyappdiv-1997.

Opinion

Related

Cite This Page — Counsel Stack