Lombardi v. DeLuca

May 18, 1987
Versions:130 A.D.2d 632
515 N.Y.S.2d 811
1987 N.Y. App. Div. LEXIS 46646

In a medical malpractice action to recover damages for personal injuries, etc., the defendant Ralph DeLuca appeals from an order of the Supreme Court, Queens County (Leahy, J.), dated January 22, 1986, which denied his motion pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as it is asserted against him as barred by the Statute of Limitations.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as it is asserted against the defendant Ralph DeLuca, and the action insofar as it is against the remaining defendant is severed.

A fixation device, in this case, suture material, intentionally placed in the body and not left there in the course of some later procedure in which it should have been removed, does not constitute a "foreign object”, even though the claim arose prior to July 1, 1975, the effective date of CPLR 214-a (see, Mitchell v Abitol, 130 AD2d 633 [decided herewith]; Cooper v Edinbergh, 75 AD2d 757). Mangano, J. P., Eiber, Kunzeman and Harwood, JJ., concur.