Santangelo v. Parke Davis & Co.

77 A.D.2d 566, 429 N.Y.S.2d 463, 1980 N.Y. App. Div. LEXIS 12271

Opinion

In an action, inter alia, to recover damages for medical malpractice, defendant La Guardiá Hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated October 17, 1979, as granted plaintiffs’ motion to dismiss its second affirmative defense of the Statute of Limitations and denied its cross motion for summary judgment based upon that defense. Order modified by deleting therefrom the provision which granted plaintiffs’ motion to dismiss appellant’s second affirmative defense and substituting therefor a provision denying the said motion. As so modified, order affirmed insofar as appealed from, without costs or disbursements. In light of the nine-month hiatus between treatments, the consultations with an independent physician, and the general lack of clarity as to the precise nature of the claims involved, a factual issue exists as to whether the Statute of Limitations defense is applicable. Therefore, it was error to dismiss the Statute of Limitations defense as a matter of law (see Miller v Wells, 58 AD2d 954; Francisco v Maniglia, 57 AD2d 806; Gnoj v City of New York, 29 AD2d 404). Rabin, J. P., Gulotta, O’Connor and Weinstein, JJ., concur.