Savino v. Nassau Hospital

127 A.D.2d 579, 511 N.Y.S.2d 379, 1987 N.Y. App. Div. LEXIS 43049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1987
• Status: Published

Opinion

In an action to recover damages, inter alia, for wrongful death, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Meade, J.), entered May 20, 1985, which granted the defendant’s motion for summary judgment dismissing their complaint.

Ordered that the order is affirmed, without costs or disbursements.

The plaintiffs’ decedent received a blood transfusion while undergoing open heart surgery at the defendant hospital on March 23, 1980. The plaintiffs allege that the decedent died from acquired immune deficiency syndrome, commonly known as "AIDS”, on June 9, 1983, as a result of that transfusion.

An action for medical malpractice and wrongful death was commenced by the plaintiffs on or about July 28, 1983. Special Term granted the defendant’s motion to dismiss the action on the ground, inter alia, that it was time barred.

On appeal, the plaintiffs argue that the AIDS virus is a "foreign object” and, therefore, the one-year discovery rule of CPLR 214-a applies. The plaintiffs failed to raise this issue before Special Term, and thus this issue is not properly before this court (see, Daniec v Synthes Ltd., 110 AD2d 675, 677). Mangano, J. P., Kunzeman, Kooper and Spatt, JJ., concur.