From Casetext: Smarter Legal Research

Gautieri v. New Rochelle Hospital Association

Appellate Division of the Supreme Court of New York, Second Department
Oct 7, 1957
4 A.D.2d 874 (N.Y. App. Div. 1957)

Opinion

October 7, 1957


The single cause of action states that respondent entered into a contract in connection with entering appellant's hospital for surgery, and agreed to pay appellant for the use of its facilities, together with necessary, competent and capable help and nurses; that appellant was under a duty to use care in the choice of said help and nurses but breached that duty, and that appellant's said breach of duty caused respondent's damages. The appeal is from an order denying a motion to dismiss the complaint on the ground that the cause of action did not accrue within the time limited by law for the commencement of an action thereon (Rules Civ. Prac., rule 107, subd. 5). Order reversed, with $10 costs and disbursements, and motion granted, without costs. It is immaterial whether the action be regarded as ex contractu or ex delicto. Since appellant's common-law duty and its implied contractual obligation were one and the same, "the suit, however labeled, is one in negligence, at least for time limitation purposes" ( Blessington v. McCrory Stores Corp., 305 N.Y. 140, 148; Webber v. Herkimer Mohawk St. R.R. Co., 109 N.Y. 311; Hermes v. Westchester Racing Assn., 213 App. Div. 147; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, affd. 287 N.Y. 670). Accordingly, the three-year period of limitation (Civ. Prac. Act, § 49, subd. 6) applies. Nolan, P.J., Wenzel, Beldock, Ughetta and Kleinfeld, JJ., concur.


Summaries of

Gautieri v. New Rochelle Hospital Association

Appellate Division of the Supreme Court of New York, Second Department
Oct 7, 1957
4 A.D.2d 874 (N.Y. App. Div. 1957)
Case details for

Gautieri v. New Rochelle Hospital Association

Case Details

Full title:GABRIELA GAUTIERI, Respondent, v. NEW ROCHELLE HOSPITAL ASSOCIATION…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 7, 1957

Citations

4 A.D.2d 874 (N.Y. App. Div. 1957)

Citing Cases

Union Bank v. HS Equities, Inc.

Thus, when a tenant sues a landlord for injuries allegedly suffered because of the landlord's negligence, the…

Schum v. Bailey

The New York Courts themselves have consistently held in malpractice actions that it is the three year…