Opinion
No. 81 SSM 1.
Decided March 27, 2007.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered October 26, 2006. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Bronx County (Sallie Manzanet, J.), which had granted defendants' motion to dismiss the complaint.
Based on the alleged malpractice of defendants in failing to correctly advise plaintiffs regarding the condition of the fetus, plaintiffs commenced this action on November 5, 2003, more than three years after the infant plaintiffs birth with severe birth defects on September 25, 2000.
The Appellate Division concluded that the complaint was properly dismissed as barred by the applicable 2½-year limitations period (CPLR 214-a) and that the equitable estoppel doctrine was not applicable to bar the statute of limitations defense because plaintiffs failed to exercise due diligence in ascertaining the facts.
Pahlad v Brustman, 33 AD3d 518, affirmed.
Benjamin Heinrich, P.C., Bronx ( Benjamin Heinrich of counsel), for appellants.
Aaronson Rappaport Feinstein Deutsch, LLP, New York City ( Steven C. Mandell of counsel), for respondents.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs. Plaintiffs had "timely awareness of the facts requiring [them] to make further inquiry before the statute of limitations expired," and an equitable estoppel defense to the statute of limitations is therefore "inappropriate as a matter of law" ( see Putter v North Shore Univ. Hosp., 7 NY3d 548, 553-554).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.