Tenenbaum v. Long Beach Memorial Hospital

206 A.D.2d 973, 616 N.Y.S.2d 287

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1994
• Status: Published

Opinion

Order unanimously reversed on the law without costs, cross motion denied, motions granted and complaint dismissed. Memorandum: Supreme Court improvidently exercised its discretion in granting plaintiffs’ cross motion for leave to amend the complaint to assert a cause of action for fraud based on allegations that defendants intentionally concealed knowledge of the presence of a needle in the body of plaintiff Ben Tenenbaum following surgery. The proposed amendment "plainly lacks merit” (Mathiesen v Mead, 168 AD2d 736). Plaintiffs failed to make a showing that either defendant intentionally concealed knowledge of the presence of the needle (cf., Simcuski v Saeli, 44 NY2d 442, 451-454).

Additionally, the court erred in denying the motions of defendants to dismiss the complaint in this medical malpractice action as time-barred pursuant to CPLR 214-a. The record reveals that plaintiff discovered the existence of the needle in his body prior to October 11, 1988. The summons and complaint, however, were not delivered to the Nassau County Sheriff’s Office pursuant to CPLR 203 until October 11, 1989. Thus, the action was commenced more than one year after its accrual. In light of our determination, we do not address the remaining arguments advanced by defendants. (Appeals from Order of Supreme Court, Nassau County, Kohn, J.—Dismiss Complaint.) Present—Green, J. P., Balio, Fallon, Callahan and Davis, JJ.