Randall v. Weber

Appellate Division of the Supreme Court of New York

Randall v. Weber

45 A.D.2d 731, 356 N.Y.S.2d 1016, 1974 N.Y. App. Div. LEXIS 4777

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

DecidedJune 10, 1974

StatusPublished

Cited by4 cases

This text of 45 A.D.2d 731 (Randall v. Weber) 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

Randall v. Weber, 45 A.D.2d 731, 356 N.Y.S.2d 1016, 1974 N.Y. App. Div. LEXIS 4777 (N.Y. Ct. App. 1974).

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Opinion

In an action to recover damages for wrongful death and conscious pain and suffering, (1) plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, entered August 28, 1973, as dismissed the wrongful death cause as against defendants Mahoney and Ziviello and (2) defendant Mahoney cross-appeals from the remainder of the order, which denied his motion [732]*732to dismiss the cause for conscious pain and suffering, with leave to interpose the defense of the Statute of Limitations and to renew that motion upon the trial. Order affirmed, without costs. We adhere to our decision in Schiffman v. Hospital, for Joint Diseases (36 A D 2d 31, mot. for lv. to app. den. 29 N Y 2d 483) with respect to the nonapplieability of the “ foreign objects — discovery rule ” to cases of negligent diagnosis or treatment. However, we affirm the portion of the order from which defendant Mahoney appealed, which gave him leave to plead the Statute of Limitations in his answer, because there is a conflict in the record as to when he last treated plaintiff’s testator. Hopkins, Acting P. J., Latham, Shapiro and Brennan, JJ., concur.

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In an action to recover damages for wrongful death and conscious pain and suffering, (1) plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, entered August 28, 1973, as dismissed the wrongful death cause as against defendants Mahoney and Ziviello and (2) defendant Mahoney cross-appeals from the remainder of the order, which denied his motion [732]*732to dismiss the cause for conscious pain and suffering, with leave to interpose the defense of the Statute of Limitations and to renew that motion upon the trial. Order affirmed, without costs. We adhere to our decision in Schiffman v. Hospital, for Joint Diseases (36 A D 2d 31, mot. for lv. to app. den. 29 N Y 2d 483) with respect to the nonapplieability of the “ foreign objects — discovery rule ” to cases of negligent diagnosis or treatment. However, we affirm the portion of the order from which defendant Mahoney appealed, which gave him leave to plead the Statute of Limitations in his answer, because there is a conflict in the record as to when he last treated plaintiff’s testator. Hopkins, Acting P. J., Latham, Shapiro and Brennan, JJ., concur.

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Bluebook (online)

45 A.D.2d 731, 356 N.Y.S.2d 1016, 1974 N.Y. App. Div. LEXIS 4777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-v-weber-nyappdiv-1974.

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