dissents and votes to affirm the order appealed from, with the following memorandum, in which Santucci, J, concurs:
I respectfully dissent. In November 1993, Milton Putter, the decedent, underwent a quadruple bypass operation at the defendant North Shore University Hospital (hereinafter North Shore). The defendant Michael H. Hall was the surgeon. After his surgery, Putter followed up regarding his cardiac condition with Dr. Leslie Cooperman, with whom he underwent regular blood tests. That testing revealed elevated liver enzymes, and following a liver biopsy performed by yet another doctor in July 1994, Putter learned that he had hepatitis-C. Putter did not have that disease prior to his surgery. He did not receive a blood transfusion during the procedure. At his deposition, Putter testified that when he discussed his hepatitis-C condition with Dr. Cooperman in 1994, Dr. Cooperman told him that he (Dr. Cooperman) had another patient who underwent surgery with Dr. Hall two weeks after Putter’s surgery, and had contracted hepatitis-C. Dr. Cooperman informed Putter that he must have contracted hepatitis-C through his surgery at North Shore.
Putter had three sons, all medical professionals. Putter’s wife testified at her deposition that she and her husband spoke with their children about Putter’s condition. The sons opined that Putter contracted the disease at North Shore.
When asked at his deposition whether he spoke with his sons about whether he contracted hepatitis-C at North Shore, his answer was: “I think I did and it seemed pretty obvious.”
Despite the fact that, in 1994, it was “obvious” where Putter contracted hepatitis-C, he did not commence this action until August 2002, almost nine years after his surgery at North Shore.
*543Based on the foregoing facts, in my view, the Supreme Court correctly granted the defendants’ motion to dismiss this action as time-barred. In opposition to the defendants’ motion, the plaintiffs argued that the defendants should be equitably estopped from asserting the statute of limitations because the defendants allegedly misled Putter regarding the source of his hepatitis-C. For example, Putter testified at his deposition that, in 1994, upon learning he had hepatitis-C, he spoke with the chief of infectious diseases at North Shore, who told him that there are a percentage of people who contract the disease from “unknown sources.” The plaintiffs further claimed that it was not until the year 2002 that they learned that Putter contracted hepatitis-C from Dr. Hall, thanks to recently-conducted testing by the New York State Department of Health (hereinafter DOH). In addition, according to the plaintiffs, DOH investigations purportedly revealed that North Shore personnel knew for years that an unspecified surgeon at that facility was infected with hepatitis-C. Nevertheless, the plaintiffs argue that North Shore willfully concealed the foregoing from Putter. The majority accepts the plaintiffs’ argument, and concludes that they demonstrated facts necessary to establish a toll of the statute of limitations.
As applied in the medical malpractice context, to invoke the doctrine of equitable estoppel, upon which the majority relies, a party otherwise entitled to assert the statute of limitations as a defense must have actively concealed the facts and consequences of the malpractice and the injured party must have justifiably relied on the defendant’s intentional misrepresentation, which reliance prevented him or her from discovering the malpractice or induced him or her to refrain from bringing a timely action (see Simcuski v Saeli, 44 NY2d 442 [1978]; Fuchs v New York Blood Ctr., 275 AD2d 240 [2000]; McIvor v Di Benedetto, 121 AD2d 519 [1986]). The doctrine of equitable estoppel does not apply if the injured plaintiff possesses timely knowledge “sufficient to place him or her under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable Statute of Limitations” (McIvor v Di Benedetto, supra at 520).
In my view, on this post-answer record in which the plaintiffs testified in painstaking detail about the state of their knowledge in 1994—eight years before they sued—neither the element of concealment nor the element of justifiable reliance was established. I recognize that normally, the issue of whether a defendant should be equitably estopped from asserting the statute of limitations as a defense is a question of fact that should *544abide a trial (see McIvor v Di Benedetto, supra at 522). But this is one of those cases, like McIvor v Di Benedetto, where the admissions contained in the depositions negate essential elements of the doctrine as a matter of law.
Putter was questioned about the state of his knowledge in 1994. Putter opined that it was “pretty obvious” where he contracted hepatitis-C. I fail to see how he can claim concealment and justifiable reliance in the face of that admission. Putter may not have known enough in 1994 to prove his case. But the issue is whether he knew enough to interpose a nonfrivolous claim. In my view, he did. Accordingly, I would affirm the order appealed from.