Ayangbesan v Finkelstein

Ayangbesan v Finkelstein 2019 NY Slip Op 01324 Decided on February 21, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 21, 2019
Friedman, J.P., Gische, Kapnick, Gesmer, Kern, JJ.
8476 162328/15

[*1]Aderonke Ayangbesan, Plaintiff-Respondent,

v

Seth Finkelstein, MD, Defendant-Appellant.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Elliot J. Zucker of counsel), for appellant.

Thomas Torto, New York (Jason Levine of counsel), for respondent.

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 9, 2016, which, inter alia, denied defendant's motion to dismiss the complaint as untimely, and granted plaintiff's cross motion to dismiss the second affirmative defense based upon the statute of limitations, unanimously modified, on the law, to deny the cross motion, and otherwise affirmed, without costs.

On the record created by the parties' submissions on the motion and cross motion, triable issues exist as to whether defendant is equitably estopped to assert the affirmative defense of the statute of limitations (Simcuski v Saeli , 44 NY2d 442, 453-454 [1978]). Accordingly, while we affirm the denial of defendant's motion to dismiss the complaint as untimely, we modify to deny plaintiff's cross motion to dismiss the affirmative defense of the statute of limitations.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 21, 2019

CLERK