Opinion
October 6, 1958
In an action to recover damages for malpractice, the appeal is from an order denying a motion for summary judgment dismissing the complaint on the ground that the action is barred by the applicable Statute of Limitations. Order reversed, with $10 costs and disbursements, and motion granted. Alleged fraud in concealing the injury does not preclude pleading the Statute of Limitations as a defense. ( Ranalli v. Breed, 251 App. Div. 750, affd. 277 N.Y. 630; Conklin v. Draper, 229 App. Div. 227, affd. 254 N.Y. 620; Tullock v. Haselo, 218 App. Div. 313. ) It is conceded that the action was not commenced within the requisite two years from the date of its accrual. Apart from such concession, however, it is our opinion that the defense of the Statute of Limitations pleaded in the answer "is founded upon facts established prima facie by documentary evidence", as required by the provisions of the rule (Rules Civ. Prac., rule 113). Such documentary evidence consists of the summons and complaint submitted in support of the motion and which demonstrate, prima facie, that the action was not commenced within the two-year time limitation prescribed for an action to recover damages for malpractice (Civ. Prac. Act, § 50, subd. 1). Nolan, P.J., Murphy, Ughetta, Hallinan and Kleinfeld, JJ., concur.