Prevost v. Hartman

103 A.D.2d 842, 478 N.Y.S.2d 356, 1984 N.Y. App. Div. LEXIS 19488

Opinion

— In an action to recover damages for medical malpractice, plaintiff appeals from an order of the Supreme Court, Queens County (Kunzeman, J.), dated September 12, 1983, which denied plaintiff’s motion to strike the affirmative defense of the Statute of Limitations and granted defendant’s cross motion to dismiss the complaint. H Order .affirmed, with costs. U The action purportedly instituted on February 6,1981 was never “commenced” within the meaning of CPLR 205 (subd [a]) because service of the summons and complaint was defective; therefore, the provisions of that section do not apply, notwithstanding defendant’s actual notice (Markoff v South Nassau Community Hosp., 61 NY2d 283, 286). H Plaintiff also contends that defendant should be estopped from pleading the Statute of Limitations because defendant’s misrepresentations induced plaintiff to refrain from properly commencing the action within the period of limitations. However, plaintiff has failed to meet her burden of establishing “that the action was brought within a reasonable time after the facts giving rise to the estoppel have ceased to be operational” (Simcuski v Saeli, 44 NY2d 442, 450). Bracken, J. P., O’Connor, Niehoff and Boyers, JJ., concur.