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Immediate v. St. John's Queens Hospital

Court of Appeals of the State of New York
Oct 11, 1979
48 N.Y.2d 671 (N.Y. 1979)


Argued September 10, 1979

Decided October 11, 1979

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JOSEPH S. CALABRETTA, J.

Lee H. Brandon for appellant.

Steven Di Joseph, Thomas R. Newman and Peter G. Monaghan for respondents.


The order of the Appellate Division should be affirmed, with costs.

Concededly, this medical malpractice action for wrongful death against respondent physician was not commenced within two years after decedent's death. Appellant's assertion in this court that the physician is estopped from asserting the Statute of Limitations by reason of his fraudulent concealment of his wrongdoing must be rejected as appellant did not assert a claim of fraud or fraudulent concealment of the alleged malpractice. Furthermore, no evidentiary facts supporting any such claim were submitted to the court by appellant in opposition to respondent's motion for summary judgment. (Alvord Swift v Muller Constr. Co., 46 N.Y.2d 276, 281.)

Appellant's contention that respondent insufficiently pleaded the Statute of Limitations is also without merit. It was sufficient under CPLR 3013 that respondent pleaded the "statute of limitations" as a defense; it was not required to identify the statutory section relied on or to specify the applicable period of limitations. Thus, respondent's motion was properly granted.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.

Order affirmed.

Summaries of

Immediate v. St. John's Queens Hospital

Court of Appeals of the State of New York
Oct 11, 1979
48 N.Y.2d 671 (N.Y. 1979)
Case details for

Immediate v. St. John's Queens Hospital

Case Details

Full title:HELEN IMMEDIATE, as Administratrix of the Estate of LOUIS J. IMMEDIATE…

Court:Court of Appeals of the State of New York

Date published: Oct 11, 1979


48 N.Y.2d 671 (N.Y. 1979)
421 N.Y.S.2d 875
397 N.E.2d 385

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