Wiesenthal v. Weinberg

17 A.D.3d 270, 793 N.Y.S.2d 422, 2005 N.Y. App. Div. LEXIS 4269

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2005
• Status: Published

Opinion

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 5, 2004, which granted defendant Weinberg’s motion for summary judgment and dismissed the complaint, unanimously affirmed, without costs.

Failure to rebut medical evidence demonstrating conformity with accepted medical practice was fatal to the cause of action for malpractice (see Pan v Coburn, 95 AD2d 670 [1983]). Dr. Weinberg’s implant of a silicone gel prosthesis into plaintiff Margery Wiesenthal’s breast, allegedly against her express wishes, was correctly deemed a cause of action for battery, which was dismissed as time-barred (see Messina v Matarasso, 284 AD2d 32 [2001]). There was no estoppel against asserting a statute of limitations defense since plaintiffs failed to demonstrate forbearance from bringing suit based on any misrepresentation by Dr. Weinberg (see Simcuski v Saeli, 44 NY2d 442, 449-450 [1978]). Moreover, plaintiffs demonstrated no injuries, much less any attributable to the alleged fraud as opposed to the battery itself (see Atton v Bier, 12 AD3d 240 [2004]). Concur—Tom, J.P., Mazzarelli, Marlow, Nardelli and Sweeny, JJ.