Opinion
November 4, 1985
Appeal from the Supreme Court, Kings County (Pino, J.).
Order reversed, insofar as appealed from, without costs or disbursements, and the above-noted branch of plaintiff's motion denied.
Plaintiff was taken to the emergency room of defendant hospital on September 23, 1981 for treatment of back pain. A complaint alleging negligence and medical malpractice was served on the hospital and treating physician in or about November 1982. Defendants pleaded, among other things, the affirmative defense of the Statute of Limitations, alleging the pleadings and examinations before trial established the gravamen of plaintiff's claim was assault and battery. Plaintiff moved, inter alia, to dismiss the affirmative defense, contending that the complaint limited itself to negligence and malpractice causes of action.
The record reveals a question of fact as to whether defendants could be found guilty of assault or malpractice. Therefore, it was error to dismiss the defense of the Statute of Limitations (see, Santangelo v Parke Davis Co., 77 A.D.2d 566; Francisco v Maniglia, 57 A.D.2d 807). Mangano, J.P., Gibbons, Thompson and Kunzeman, JJ., concur.