92 A.D.2d 863 | N.Y. App. Div. | 1983
— In an action to recover damages for personal injuries, etc., based on medical malpractice, breach of warranty and strict products liability, defendant Bertocchi appeals from an order of the Supreme Court, Kings County (Greenstein, J.), dated October 19, 1981, which denied his motion for summary judgment dismissing the complaint as to him based upon the affirmative defense of the Statute of Limitations asserted in his answer, “without prejudice to defendant [Bertocchi] to assert and prove his affirmative defense.” Order modified, on the law, by adding after the last word of the last paragraph thereof, the following: “except that the motion to dismiss is granted with respect to the cause of action alleging a breach of warranty, and that cause of action is dismissed as to defendant Bertocchi.” As so modified, order affirmed, without costs or disbursements. In July, 1979, the female plaintiff and her husband commenced this action against her former physician, defendant Bertocchi, to recover damages resulting from the insertion into the female plaintiff of a “Majzlin Spring” intrauterine device (hereinafter IUD) in 1973. Plaintiffs also joined both the developer and the distributor of the IUD as