Opinion
2013-01351, Index No. 1294/12.
09-23-2015
Salvatore MARTINO, respondent, v. Spyros PANOS, etc., et al., defendants, Mid Hudson Medical Group, P.C., appellant.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Christopher P. Keenan and Timothy M. Smith of counsel), for appellant. Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), for respondent.
Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Christopher P. Keenan and Timothy M. Smith of counsel), for appellant.
Wisell & McGee, LLP, Kew Gardens, N.Y. (Nancy M. McGee of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
Opinion In an action, inter alia, to recover damages for medical malpractice, the defendant Mid Hudson Medical Group, P.C., 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 that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the cause of action alleging medical malpractice insofar as asserted against it as time-barred.
ORDERED that the order is affirmed insofar as appealed from, with costs.
According to the plaintiff, on May 7, 2008, he sought treatment for his left knee from the defendant Spyros Panos, a physician employed by the defendant Mid Hudson Medical Group, P.C. (hereinafter Mid Hudson). On September 4, 2008, Panos performed surgery on the plaintiff's left knee. On March 8, 2012, the plaintiff commenced this action against, among others, Panos and Mid Hudson, inter alia, to recover damages for medical malpractice. Mid Hudson appeals from so much of an order as denied that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss the medical malpractice cause of action insofar as asserted against it as time-barred.
The allegations in the complaint, which must be accepted as true for the purposes of this motion (see Bill Kolb, Jr., Subaru, Inc. v. LJ Rabinowitz, CPA, 117 A.D.3d 978, 979, 986 N.Y.S.2d 523 ; 6D Farm Corp. v. Carr, 63 A.D.3d 903, 905, 882 N.Y.S.2d 198 ; Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 A.D.3d 815, 816, 854 N.Y.S.2d 230 ; Sabadie v. Burke, 47 A.D.3d 913, 914, 849 N.Y.S.2d 440 ), along with the allegations set forth in the plaintiff's affidavit, wherein he stated that Panos made certain misrepresentations and false assurances to him after the subject surgery and that those misrepresentations and assurances prevented him from discovering the malpractice and commencing the action within the applicable limitations period, were sufficient to warrant the application of the doctrine of equitable estoppel against Mid Hudson, as Panos's employer (see Simcuski v. Saeli, 44 N.Y.2d 442, 447–449, 406 N.Y.S.2d 259, 377 N.E.2d 713 ; Ducillo v. Hudson Val. at St. Francis, LLC, 128 A.D.3d 885, 9 N.Y.S.3d 624 ; Giannetto v. Knee, 82 A.D.3d 1043, 1045–1046, 919 N.Y.S.2d 176 ; Owen v. Mackinnon, 6 A.D.3d 684, 686, 775 N.Y.S.2d 565 ; cf. Saretto v. Panos, 120 A.D.3d 786, 992 N.Y.S.2d 88 ; Plain v. Vassar Bros. Hosp., 115 A.D.3d 922, 923–924, 982 N.Y.S.2d 558 ; Nelson v. Hudson Val. Ctr. at St. Francis, LLC, 115 A.D.3d 917, 918, 982 N.Y.S.2d 566 ; Butcher v. Panos, 115 A.D.3d 900, 901, 982 N.Y.S.2d 560 ). We note that, in opposition to Mid Hudson's motion, the plaintiff was permitted to submit an affidavit in order to remedy defects in his complaint, and that the allegations contained therein are also deemed to be true for the purposes of this motion (see Ducillo v. Hudson Val. at St. Francis, LLC, 128 A.D.3d 885, 9 N.Y.S.3d 624 ; Ford v. Phillips, 121 A.D.3d 1232, 1234, 994 N.Y.S.2d 688 ; AAA Viza, Inc. v. Business Payment Sys., LLC, 38 A.D.3d 802, 803, 833 N.Y.S.2d 552 ). Furthermore, the Supreme Court directed the plaintiff to serve and file an amended complaint to include the allegations of fraud set forth against Panos in the plaintiff's proposed amended complaint. These allegations were also sufficient to warrant the application of the doctrine of equitable estoppel against Mid Hudson (see Ducillo v. Hudson Val. at St. Francis, LLC, 128 A.D.3d 885, 9 N.Y.S.3d 624 ).
Accordingly, the Supreme Court properly denied that branch of Mid Hudson's motion which was pursuant to CPLR 3211(a)(5) to dismiss the medical malpractice cause of action insofar as asserted against it as time-barred.