Opinion
12124 Index No. 805351/16 Case No. 2019-5522
10-20-2020
Scott GAYLORD, Plaintiff–Appellant, v. David P. GENTILE, Defendant-Respondent, UR Urology, et al., Defendants.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Schiavetti Corgan Di Edwards Weinberg & Nicholson LLP, New York (Angela M. Ribaudo of counsel), for respondent.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Schiavetti Corgan Di Edwards Weinberg & Nicholson LLP, New York (Angela M. Ribaudo of counsel), for respondent.
Acosta, P.J., Mazzarelli, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 12, 2019, which granted defendant David P. Gentile's motion to dismiss the complaint as against him as time-barred, unanimously affirmed, without costs.
The stent that was placed in plaintiff's ureter as part of a surgical procedure to remove kidney stones and was intended to remain for two to four weeks post-procedure to insure that the ureter remained unobstructed, allowing urine and stone fragments to pass, was a fixation device, not a foreign object that may toll the statute of limitations ( CPLR 214–a ; see LaBarbera v. New York Eye & Ear Infirmary , 91 N.Y.2d 207, 212, 668 N.Y.S.2d 546, 691 N.E.2d 617 [1998] ). Neither the fact that it was meant to be temporary nor the fact that its continued presence was inadvertent transformed the stent into a foreign object (see LaBarbera , 91 N.Y.2d at 212–213, 668 N.Y.S.2d 546, 691 N.E.2d 617 ; Walton v. Strong Mem. Hosp. , 25 N.Y.3d 554, 571, 14 N.Y.S.3d 757, 35 N.E.3d 827 [2015], citing Rodriguez v. Manhattan Med. Group , 77 N.Y.2d 217, 566 N.Y.S.2d 193, 567 N.E.2d 235 [1990] ; Knox v. St. Luke's Hosp. , 140 A.D.3d 501, 32 N.Y.S.3d 488 [1st Dept. 2016] ). Thus, the mere fact that plaintiff's treating physician called it a "foreign object" in opposition to defendant's motion does not raise an issue of fact.