You are here: / / THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY...
, ,

THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY ROOM IMMEDIATELY AFTER BIRTH, SOUNDED IN MEDICAL MALPRACTICE, NOT NEGLIGENCE, AND WAS THEREFORE TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s action, which stemmed from being dropped in the delivery room immediately after birth in 1999, sounded in medical malpractice, not negligence, and was therefore time-barred:

CPLR 208 provides that the statute of limitations is tolled throughout the period of infancy, but limits such toll to 10 years in medical malpractice actions … . In determining whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached … . A negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient constitutes medical malpractice … .

Here, the defendant established … the conduct at issue derived from the duty owed to plaintiff by the defendant as a result of the physician-patient relationship and was substantially related to the plaintiff’s medical treatment … . Rojas v Tandon, 2022 NY Slip Op 04989, Second Dept 8-17-22

Practice Point: The infancy toll of the statute of limitations in CPLR 208 is limited to ten years in medical malpractice cases. Here plaintiff alleged she was dropped in the delivery room immediately after birth in 1999. The action would have been timely if it sounded in negligence. But the action was deemed to sound in medical malpractice rendering it time-barred.

 

You might also like
EVEN THOUGH DEFENDANT WAS NEGLIGENT AS A MATTER OF LAW BASED ON A VEHICLE AND TRAFFIC LAW VIOLATION, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS REAR-END COLLISION CASE, DEFENDANT WAS DRIVING HIS OWN VEHICLE TO WORK AND WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT AT THE TIME OF THE ACCIDENT, EMPLOYER ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).
LAW FIRM SANCTIONED FOR FAILURE TO APPEAR AT A MANDATORY MEDIATION SESSION TO ATTEMPT TO RESOLVE THE MATTER ON APPEAL (SECOND DEPT).
WET AND MUDDY CONDITION OF A FIELD WAS OPEN AND OBVIOUS, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
TO STATE A CAUSE OF ACTION FOR DEFAMATION THE COMPLAINT MUST ALLEGE THE ACTUAL WORDS, WHEN THE STATEMENTS WERE MADE AND TO WHOM THE STATEMENTS WERE MADE; ALLEGING THE “GENERAL CONTENT” OF THE STATEMENTS WITHOUT SPECIFYING WHEN AND TO WHOM THEY WERE MADE IS NOT ENOUGH (SECOND DEPT).
APPELLANT, WHICH HAD PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING, SHOULD HAVE BEEN ALLOWED TO INTERVENE, CRITIERIA EXPLAINED (SECOND DEPT).
PETITIONER, A LEVEL THREE SEX OFFENDER UNDER POST-RELEASE SUPERVISION, CAN BE PLACED IN RESIDENTIAL CORRECTIONS FACILITIES PENDING THE AVAILABILITY OF COMMUNITY HOUSING THAT IS MORE THAN 1000 FEET FROM A SCHOOL (SECOND DEPT).
FAILURE TO TAKE TIMELY STEPS TO SETTLE THE ORDER IN THIS FORECLOSURE ACTION RENDERED THE ACTION ABANDONED PURSUANT TO 22 NYCRR 202.48 (SECOND DEPT).
ALTHOUGH THE RPAPL 1304 FORECLOSURE NOTICE, TO BE VALID, MUST ACCURATELY STATE THE DEFAULT AMOUNT AND THE LENGTH OF TIME THE BORROWER HAS BEEN IN DEFAULT, THERE WAS NO SHOWING HERE THE STATED AMOUNT WAS INACCURATE; THE BANK DID NOT DEMONSTRATE IT WAS IN POSSESSION OF THE NOTE AT THE TIME THE ACTION WAS COMMENCED AND THEREFORE DID NOT DEMONSTRATE STANDING TO FORECLOSE; THE EVIDENCE OF A MERGER SUBMITTED IN REPLY COULD NOT BE CONSIDERED ON THE STANDING ISSUE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

HERE DEFENDANT, WHO PLED GUILTY TO BURGLARY AS A SEXUALLY MOTIVATED FELONY,... CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL...