19 A.D.3d 355
N.Y. App. Div.
2005

SALVATORE J. CATAPANO, Appellant, v WINTHROP UNIVERSITY HOSPITAL, Respondent.

Supreme Court, Appellate Division, Second Department, New York

796 N.Y.S.2d 158

In an action to recover damages for medical malpractice, the plaintiff appeals, as limited by his brief, from so much an order of the Supreme Court, Nassau County (Dunne, J.), dated January 23, 2004, as granted the defendant’s motion to dismiss the complaint as time-barred pursuant to CPLR 214-a.

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

The plaintiff commenced this action in 2002. In his complaint he alleged, inter alia, that the defendant failed to “promptly examine . . . diagnose . . . and appropriately treat” his decedent in its emergency room in 1996. The defendant moved to dismiss the complaint as time-barred pursuant to CPLR 214-a. In opposition, the plaintiff claimed, inter alia, that the action was governed by the six-year statute of limitations applicable to breach of contract actions.

A breach of contract claim in relation to the rendition of medical services by a hospital will withstand a test of legal sufficiency only when based upon an express promise to affect a cure or to accomplish some definite result (see ; ; ; ; see also ). Contrary to the plaintiff’s contention, provisions of the “Patient’s Bill of Rights” do not constitute the requisite “express promise” or special agreement with the patient so as to furnish the basis for a breach of contract claim (see ). In any event, it is clear that the complaint actually pleads a medical malpractice action, despite the fact that it also contains some breach of contract phraseology (see , mod ; ).

Accordingly, the court properly dismissed the complaint as time-barred since it is undisputed that the action was commenced well beyond the 2 1/2-year statute of limitations applicable to medical malpractice actions (see CPLR 214-a).

Florio, J.P., Santucci, Mastro and Spolzino, JJ., concur.