Randall v. Weber

45 A.D.2d 731 | N.Y. App. Div. | 1974

In an action to recover damages for wrongful death and conscious pain and suffering, (1) plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County, entered August 28, 1973, as dismissed the wrongful death cause as against defendants Mahoney and Ziviello and (2) defendant Mahoney cross-appeals from the remainder of the order, which denied his motion to dismiss the cause for conscious pain and suffering, with leave to interpose the defense of the Statute of Limitations and to renew that motion upon the trial. Order affirmed, without costs. We adhere to our decision in Schiffman v. Hospital, for Joint Diseases (36 A D 2d 31, mot. for lv. to app. den. 29 N Y 2d 483) with respect to the nonapplieability of the “ foreign objects — discovery rule ” to cases of negligent diagnosis or treatment. However, we affirm the portion of the order from which defendant Mahoney appealed, which gave him leave to plead the Statute of Limitations in his answer, because there is a conflict in the record as to when he last treated plaintiff’s testator. Hopkins, Acting P. J., Latham, Shapiro and Brennan, JJ., concur.