Moschetti v. Saxe

Full title: ELIZABETH MOSCHETTI et al., Appellants, v. IRVING H. SAXE et al.…

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 14, 1993

199 A.D.2d 79 (N.Y. App. Div. 1993)

605 N.Y.S.2d 47

Opinion

December 14, 1993

Appeal from the Supreme Court (Stanley Sklar, J.).

We agree with the IAS Court that this case, involving the alleged negligence of a doctor in failing to remove an IUD previously implanted, cannot be distinguished from Rodriguez v Manhattan Med. Group ( 77 N.Y.2d 217), involving the alleged negligence of a doctor in failing to remove an IUD previously implanted by another doctor, and that the alleged negligence did not transform the IUD from a "fixation device" into a "foreign object" so as to make the delayed discovery rule of CPLR 214-a applicable (see also, Rockefeller v Moront, 81 N.Y.2d 560). Accordingly, the action was properly dismissed as time-barred.

Concur — Murphy, P.J., Sullivan, Ross and Asch, JJ.