| Gaylord v Gentile |
| 2020 NY Slip Op 05850 |
| Decided on October 20, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: October 20, 2020
Before: Acosta, P.J., Mazzarelli, Moulton, González, JJ.
Index No. 805351/16 Appeal No. 12124 Case No. Case No. 2019-5522
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.
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 NY2d 207, 212 [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 NY2d at 212-213; Walton v Strong Mem. Hosp., 25 NY3d 554, 571 [2015], citing Rodriguez v Manhattan Med. Group, 77 NY2d 217 [1990]; Knox v St. Luke's Hosp., 140 AD3d 501 [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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 20, 2020