WIESENTHAL v. Mentor Corporation, et al., Defendants. (2005)

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 5, 2004, which granted defendant Weinberg's motion for summary judgment and dismissed the complaint, unanimously affirmed, without costs.

 Failure to rebut medical evidence demonstrating conformity with accepted medical practice was fatal to the cause of action for malpractice (see Pan v. Coburn, 95 A.D.2d 670, 463 N.Y.S.2d 223 [1983] ).   Dr. Weinberg's implant of a silicone gel prosthesis into plaintiff Margery Wiesenthal's breast, allegedly against her express wishes, was correctly deemed a cause of action for battery, which was dismissed as time-barred (see Messina v. Matarasso, 284 A.D.2d 32, 729 N.Y.S.2d 4 [2001] ).   There was no estoppel against asserting a statute of limitations defense since plaintiffs failed to demonstrate forbearance from bringing suit based on any misrepresentation by Dr. Weinberg (see Simcuski v. Saeli, 44 N.Y.2d 442, 449-450, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978] ).   Moreover, plaintiffs demonstrated no injuries, much less any attributable to the alleged fraud as opposed to the battery itself (see Atton v. Bier, 12 A.D.3d 240, 785 N.Y.S.2d 426 [2004] ).