Opinion
April 7, 1994
Appeal from the Supreme Court, Queens County (Joan Marie Durante, J.).
The IAS Court properly dismissed the first, second, third, fourth and fifth causes of action, sounding in medical malpractice/negligence as time barred by the Statute of Limitations (CPLR 214, 214-a). These causes of action failed to allege any facts sufficient to estop defendants from pleading a Statute of Limitations defense (cf., Simcuski v Saeli, 44 N.Y.2d 442, 448-449). That defendant Goldsmith allegedly informed plaintiff that all was well with respect to his left eye in which a lens had been implanted, does not suffice to create an estoppel defense (see, Roosa v Frankel, 166 A.D.2d 569), notwithstanding that Goldsmith participated in the clinical trial of the offending lens, and that the lens was later recalled by the Food and Drug Administration. Plaintiffs' seventh cause of action, however, set forth an action sounding in fraudulent misrepresentation on the part of defendants (see, Board of Mgrs. v Zucker, 190 A.D.2d 636) sufficient to sustain the action and withstand dismissal at this stage in the proceedings (see, Harkin v Culleton, 156 A.D.2d 19, 25, lv dismissed 76 N.Y.2d 936).
Concur — Rosenberger, J.P., Ross, Asch, Rubin and Tom, JJ.