Varonev.Delman

Appellate Division of the Supreme Court of New York, Second DepartmentMay 1, 1995
215 A.D.2d 373 (N.Y. App. Div. 1995)
215 A.D.2d 373626 N.Y.S.2d 237

May 1, 1995

Appeal from the Supreme Court, Suffolk County (Lama, J.).


Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant doctor performed a colonoscopy on the plaintiff on December 17, 1986. According to the plaintiff, the defendant failed to inform him of a polyp on his colon because of the defendant's failure to properly record, store, or report the results of the colonoscopy.

The plaintiff's complaint included causes of action to recover damages for breach of contract and negligence, respectively. The plaintiff's contention that the second cause of action should be subject to a three-year Statute of Limitations rather than the two and one-half year Statute of Limitations for medical malpractice actions (see, CPLR 214, 214-a) is academic, inasmuch as the plaintiff did not commence the action until December 1992. Contrary to the plaintiff's suggestions, the cause of action accrued in December 1986, rather than when he learned of the polyp's existence in 1990 (see, Rizk v Cohen, 73 N.Y.2d 98, 104; Thornton v Roosevelt Hosp., 47 N.Y.2d 780).

As to the defendant's argument that the Supreme Court should have dismissed the cause of action based on breach of contract, we note that the defendant has not filed a cross appeal. To the extent that the defendant impliedly relies on our ability to search the record (see, CPLR 3212 [b]), we agree with the Supreme Court's conclusion that the defendant failed to establish prima facie entitlement to judgment as a matter of law (see generally, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562). Bracken, J.P., Balletta, Copertino and Hart, JJ., concur.