Opinion
December 7, 1970
In a medical malpractice action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Kings County, dated November 3, 1969, which (1) granted plaintiff's motion to dismiss the affirmative defense of res judicata in defendant's answer and (2) denied defendant's cross motion to dismiss the complaint on the ground of res judicata. Order reversed, on the law, without costs, plaintiff's motion denied and defendant's cross motion granted. The findings of fact below are affirmed. Plaintiff commenced a prior action against defendant in 1967 which resulted in a judgment in favor of defendant upon the granting of defendant's motion to dismiss the complaint on the ground that the action was barred by the Statute of Limitations. Plaintiff defaulted on that motion and failed to move to open her default. The alleged negligent act had taken place in 1963 and thus the three-year Statute of Limitations period had expired. In 1969, the Court of Appeals in Flanagan v. Mt. Eden Gen. Hosp. ( 24 N.Y.2d 427) held that in a foreign-object malpractice case the statute will not begin to run until the patient could have reasonably discovered the malpractice. Several months later plaintiff commenced this action, alleging that she discovered the foreign object for the first time in July, 1967. We are of the view that it was error to have struck the defense of res judicata. Plaintiff never exercised her right to move to reopen her default on the motion to dismiss the complaint in the prior action and thus the determination therein, that the Statute of Limitations barred the claim, became the law of the case. The judgment in the prior action determined that the defense of the Statute of Limitations barred any rights she might have had against defendant. That determination may be considered to be on the merits, at least as far as the courts of New York are concerned, as to the point it decided ( Hirshbach v. Ketchum, 79 App. Div. 561; see Practice Commentaries on CPLR 3211 by Prof. David D. Siegel in McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3201 — 3400, pp. 73-74). Accordingly, defendant is entitled to rely on the judgment in the prior action. Furthermore, the subsequent change in the law brought about by the decision in Flanagan v. Mount Eden Gen. Hosp. ( supra) is not a basis for altering the first adjudication as to the rights of the parties with respect to the Statute of Limitations ( Matter of Huie [ Furman], 20 N.Y.2d 568; Deeves v. Fabric Fire Hose Co., 19 A.D.2d 735, affd. 14 N.Y.2d 633). Rabin, Acting P.J., Hopkins, Martuscello, Latham and Brennan, JJ., concur.