Hull v Smithtown Ctr. for Rehabilitation & Nursing Care

Hull v Smithtown Ctr. for Rehabilitation & Nursing Care 2011 NY Slip Op 08727 Decided on November 29, 2011 Appellate Division, Second 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 November 29, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
ROBERT J. MILLER, JJ.
2010-11252
(Index No. 36867/08)

[*1]Kenneth Hull, etc., respondent,

v

Smithtown Center for Rehabilitation & Nursing Care, et al., appellants.




Murphy & Higgins, LLP, New Rochelle, N.Y. (Dan Schiavetta,
Jr., of counsel), for appellants Smithtown Center for Rehabilitation
& Nursing Care and Smithtown Health Care Management, LLC.
Montfort, Healy, McGuire & Salley, Garden City, N.Y.
(Donald S. Neumann, Jr., and Michael K.
Chin of counsel), for appellants
Jacqueline Morgan and St. Charles Hospital
and Rehabilitation Center.
Persing & O'Leary, LLP, Latham, N.Y. (Daniel J. Persing of
counsel), for respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants Smithtown Center for Rehabilitation & Nursing Care and Smithtown Healthcare Management, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Sweeney, J.), entered September 14, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them as time-barred, and the defendants Jacqueline Morgan and St. Charles Hospital and Rehabilitation Center separately appeal, as limited by their brief, from so much of the same order as denied that branch of their separate motion which was for summary judgment dismissing the complaint insofar as asserted against them as time-barred.

ORDERED that the order is affirmed, with one bill of costs.

The defendants failed to establish their prima facie entitlement to judgment as a matter of law in connection with their contention that the complaint sounds in medical malpractice rather than simple negligence and, thus, that the action was untimely pursuant to CPLR 214-a. Accordingly, the Supreme Court properly denied the motion of the defendants Smithtown Center for Rehabilitation & Nursing Care and Smithtown Healthcare Management, LLC (hereinafter together Smithtown), and that branch of the separate motion of the defendants Jacqueline Morgan and St. Charles Hospital and Rehabilitation Center which were for summary judgment, regardless of the sufficiency of the opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).

Smithtown's remaining contention is without merit. [*2]
MASTRO, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court