MALONE v. SPALIVIERO (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Alison J. Napolitano, J.), dated December 16, 2024.  The order, insofar as appealed from, granted that branch of the plaintiffs' motion which was pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defense alleging the expiration of the statute of limitations.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs' motion which was pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defense alleging the expiration of the statute of limitations is denied.

On June 5, 2024, the plaintiff Kedrick Malone (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action against the defendant to recover damages for medical malpractice, lack of informed consent, and loss of consortium.  The complaint alleged that the defendant provided medical treatment to the injured plaintiff for a period beginning on May 11, 2021, and continuing through July 15, 2022.  On July 23, 2024, the defendant interposed an answer asserting the expiration of the statute of limitations as an affirmative defense.  In November 2024, the plaintiffs moved, inter alia, pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defense alleging the expiration of the statute of limitations, contending that it lacked merit as the lawsuit was timely commenced.  The defendant opposed the motion.  In an order dated December 16, 2024, the Supreme Court, among other things, granted that branch of the plaintiffs' motion.  The defendant appeals.

Pursuant to CPLR 3211(b), a “party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.”  “When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense” (Bank of Am., N.A. v. Yeo Seon Kim, 241 AD3d 1511, 1512 [internal quotation marks omitted];  see Janover, LLC v. Smith, 245 AD3d 907, 911).  “In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference” (Janover, LLC v. Smith, 245 AD3d at 911 [internal quotation marks omitted];  see Gonzalez v. Wingate at Beacon, 137 AD3d 747).  “If there is any doubt as to the availability of a defense, it should not be dismissed” (Blachowicz v. City of New York, 241 AD3d 1513, 1516 [internal quotation marks omitted];  see Gonzalez v. Wingate at Beacon, 137 AD3d at 747).

Here, the plaintiffs failed to establish that the defendant's affirmative defense alleging the expiration of the statute of limitations was without merit as a matter of law.  The plaintiffs' moving papers did not support their conclusory allegations that the defendant's treatment of the injured plaintiff beginning on May 11, 2021, and continuing through July 15, 2022, made their action timely based on the continuous treatment doctrine (see Rhodes v. Van Valkenburg, 236 AD3d 838, 839;  Proano v. Gutman, 211 AD3d 978, 981).  The plaintiffs' attempt to remedy this deficiency by submitting portions of a purported medical chart through their counsel's reply affirmation was improper.  The function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new grounds or evidence in support of the motion (see Kogut v. Village of Chestnut Ridge, 214 AD3d 777, 780;  Lee v Law Offs. of Kim & Bae, P.C., 161 AD3d 964, 965).  The exceptions to this rule did not apply here (see Bank of N.Y. Mellon v. Cooper, 239 AD3d 582, 583;  HSBC Bank USA v. Lem, 236 AD3d 762, 763).  Accordingly, the Supreme Court should have denied that branch of the plaintiffs' motion which was pursuant to CPLR 3211(b) to dismiss the defendant's affirmative defense alleging the expiration of the statute of limitations.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.