Butcher v Panos

Butcher v Panos 2014 NY Slip Op 02007 Decided on March 26, 2014 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 March 26, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
PLUMMER E. LOTT
SHERI S. ROMAN
SYLVIA O. HINDS-RADIX, JJ.
2013-01255
(Index No. 596/12)

[*1]Keith Butcher, respondent,

v

Spyros Panos, etc., et al., defendants, Vassar Brothers Hospital, appellant.




Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel
S. Ratner of counsel), for appellant.
Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee
and John T. Wisell, Jr., of counsel), for
respondent.


DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant Vassar Brothers Hospital appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Lubell, J.), dated November 29, 2012, as denied its motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Vassar Brothers Hospital pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred is granted.

According to the plaintiff, on or about November 2007, he sought treatment for his right knee from the defendant physician Spyros Panos. On December 27, 2007, Panos performed surgery on the plaintiff's knee at Vassar Brothers Hospital (hereinafter Vassar). On February 1, 2012, the plaintiff commenced this action against Vassar, among others, inter alia, to recover damages for medical malpractice.

The Supreme Court should have granted Vassar's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it as time-barred. Contrary to the plaintiff's contention, the motion was not properly denied on the ground that discovery might have revealed evidence that would estop Vassar from raising a statute of limitations defense. In opposition to Vassar's motion, the plaintiff's counsel stated that, with further discovery, the plaintiff hoped to be able to establish that Vassar possessed knowledge of Panos's medical malpractice, and that this knowledge, coupled with Vassar's "allowing" Panos "to continue" his malpractice to the detriment of other patients, was a fraud perpetrated by Vassar on the public that estopped it from asserting a statute of limitations defense. Even if the plaintiff were able to establish these facts, however, they would not give rise to an estoppel (see Plain v Vassar Bros. Hosp. ________ AD3d ________ [decided herewith]). [*2]
RIVERA, J.P., LOTT, ROMAN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court