188 A.D.2d 1034 | N.Y. App. Div. | 1992
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in concluding that defendant should be estopped from asserting the Statute of Limitations as a defense to plaintiff’s medical malpractice cause of action. Although a defendant may be estopped from pleading the Statute of Limitations "where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 449), the doctrine of equitable estoppel is to be "invoked sparingly and only under exceptional circumstances” (Matter of Gross v New York City Health & Hosps. Corp., 122 AD2d 793, 794). The record before us contains no evidence of fraud, misrepresentation, deception, or intentional concealment on defendant’s part to entitle plaintiff to invoke the doctrine of equitable estoppel. Moreover, plaintiff admittedly learned the identity of defendant at the EBT of a codefendant in December 1987, yet waited until after the expiration of the Statute of Limitations to serve defendant. Under those circumstances, there was no basis for applying the extraordinary doctrine of equitable estoppel and the court should have granted defendant’s motion to dismiss plaintiff’s medical malpractice cause of action.
Supreme Court properly held that service upon defendant did not relate back to service upon the Family Medicine Center pursuant to CPLR 203 (b) (1). Where plaintiff is attempting to add to the action a new defendant who was not named in the original summons, plaintiff must show that both