57 A.D.2d 711 | N.Y. App. Div. | 1977
Order reversed, without costs, motion granted, and complaint dismissed. Memorandum: Plaintiff alleges in her complaint that on October 19, 1970 defendant Saeli, a physician, performed surgery on her for the removal of a node on her neck. She claims that in performing the operation Dr. Saeli negligently injured a nerve in her neck and upper body, and that he was aware of the serious permanent injury but told plaintiff that the difficulties would disappear in time and that in the meantime she should undergo physiotherapy. She was advised by other physicians in October of 1974 that she had suffered damage to certain nerves. She alleges that her injuries resulted from the negligence, medical malpractice and fraud of defendants and that because of the concealment of her condition, she was deprived of an opportunity to cure the condition. Her complaint was served on April 30, 1976. Defendant Saeli moved to dismiss the complaint, claiming that the action is for malpractice and is barred by the Statute of Limitations. Plaintiff contends, and Special Term agreed, that the complaint states a cause of action for fraud, because of the allegation that defendants fraudulently concealed from plaintiff the nature of her problem, and therefore that