ROSWICK v. MOUNT SINAI MEDICAL CENTER

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Supreme Court, Appellate Division, First Department, New York.

Bruce H. ROSWICK, Plaintiff-Appellant, v. The MOUNT SINAI MEDICAL CENTER, etc., Defendant-Respondent.

Decided: October 25, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, MALONE, JJ. Bruce H. Roswick, appellant pro se. Wenick & Finger, P.C., New York (Frank J. Wenick of counsel), for respondent.

Order, Supreme Court, New York County (Stanley L. Sklar, J.), entered November 4, 2004, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant showed that action was commenced more than three years subsequent to the alleged negligence and malpractice.   Although plaintiff urges that he is entitled to the benefit of an estoppel preventing defendant from relying on the applicable statutes of the limitations (see CPLR 214[5] and 214-a) to obtain the action's dismissal, he failed to make the requisite showing that he brought his action “within a reasonable time after the facts [allegedly] giving rise to the estoppel ․ ceased to be operational” (see Simcuski v. Saeli, 44 N.Y.2d 442, 450, 406 N.Y.S.2d 259, 377 N.E.2d 713 [1978] ).   Plaintiff's claims were not yet time-barred when he admittedly was told by other doctors that he had been misdiagnosed in defendant's emergency room.   Yet, for reasons not apparent on the face of the present record, plaintiff waited another year and eight months before commencing his action.   In any event, plaintiff has not shown evidence of, or even pleaded, facts apart from those giving rise to the malpractice claim (see Kaufman v. Cohen, 307 A.D.2d 113, 122, 760 N.Y.S.2d 157 [2003] ), showing defendant's purposeful concealment of a circumstance reasonably relied upon by him in forbearing from commencing his action until after the statutory period had run (id.;  Chesrow v. Galiani, 234 A.D.2d 9, 10-11, 650 N.Y.S.2d 158 [1996];  and see Petito v. Piffath, 85 N.Y.2d 1, 6, 623 N.Y.S.2d 520, 647 N.E.2d 732 [1994], cert. denied 516 U.S. 864, 116 S.Ct. 177, 133 L.Ed.2d 116 [1995] ).   As for plaintiff's fraud allegations, we find no indicia of damages separate from the alleged malpractice damages (see Atton v. Bier, 12 A.D.3d 240, 241, 785 N.Y.S.2d 426 [2004] ), and no allegations of intentional fraudulent concealment apart from the alleged malpractice (see Hazel v. Montefiore Med. Ctr., 243 A.D.2d 344, 345, 663 N.Y.S.2d 165 [1997] ).   Nor do we find any threshold showing, in support of plaintiff's claimed need for discovery, that there is yet-undiscovered relevant evidence in defendant's control (see Moukarzel v. Montefiore Med. Ctr., 235 A.D.2d 239, 240, 652 N.Y.S.2d 281 [1997] ).