(dissenting). I respectfully dissent.
While the majority’s analysis of CPLR 214-a is impressive, I take a somewhat different view of the salient issue on appeal. *310Under the holding of the Court of Appeals in Rockefeller v Moront (81 NY2d 560, 564), several factors are crucial to a determination of whether an object which remains in a patient constitutes a "foreign object”: the nature of the material implanted in the patient, the function of that material, and the nature and moment of completion of the medical procedure at issue. As the Court observed, "[ojbjects such as surgical clamps, scalpels, and sponges are introduced into the patient’s body to serve a temporary medical function for the duration of the surgery, but are normally intended to be removed after the procedure’s completion. Clearly, when such objects are left behind, no assessment of the medical professional’s expert judgment or discretion in failing to remove them is necessary to establish negligence” (81 NY2d, supra, at 564). That is, although an object such as a clamp might be used to "fix” or hold stationary other objects, tissue or organs in the course of a procedure, the temporary function of such objects assures that their presence in the body following the completion of the procedure is so plainly evidence of negligence that such items are treated as foreign objects, and not as fixation devices, within the meaning of CPLR 214-a.
There is no dispute in this matter that the silastic stent hqre at issue was designed to maintain a bodily structure, and was intended to be left in plaintiffs nose for 10 days after the initial surgery. But there is a serious and unresolved question as to whether the surgical procedure involving the stent was "completed” at the time of its initial placement, or was merely partly finished, to be completed by the surgeon in a brief subsequent visit. This is, at the very least, a question of fact that has not been answered in the record currently before us. In my view, it is reasonable and just to conclude that a medical procedure which specifically contemplates both the insertion and, a short time later, the removal of a supporting device is incomplete until that device has been removed. Especially where competent medical practice would recognize the deleterious effect of nonremoval upon the patient, CPLR 214-a can and should be read to toll the Statute of Limitations under the foreign body exception.
The situation at bar is readily distinguishable from cases in which appellate courts have declined to extend the scope of CPLR 214-a. It does not present an instance of deliberate and permanent implantation of a device, such as a suture, in the wrong place (Rockefeller v Moront, 81 NY2d, supra, at 566; Lombardi v DeLuca, 71 NY2d 838; Cooper v Edinbergh, 75 *311AD2d 757), or a device otherwise deliberately installed to remain within the body for a lengthy or indeterminate period, such as ah IUD (Rodriguez v Manhattan Med. Group, 77 NY2d 217; Mitchell v Abitol, 130 AD2d 633; Vinciguerra v Jameson, 208 AD2d 1136, lv denied 86 NY2d 702; Provenzano v Becall, 138 AD2d 585; see also, Rockefeller v Moront, 81 NY2d, supra, at 564-565, quoting Lombardi v DeLuca, 130 AD2d 632, affd 71 NY2d 838, supra [" '[A] fixation device, in this case, suture material, intentionally placed in the body and not left there in the course of some later procedure in which it should have been removed, does not constitute a "foreign object”, even though the claim arose prior to July 1,1975, the effective date of CPLR 214-a.’ ” (emphasis added)]). It does not involve a failure to detect the continued presence of a device previously inserted by another physician or in another procedure (see, Rodriguez v Manhattan Med. Group, 77 NY2d, supra, at 223). Finally, it does not rely upon defendant’s alleged negligence in exercising professional diagnostic judgment or discretion; there is no causal break between defendant’s negligence and the injury, and it cannot be argued that plaintiff’s action is "feigned or frivolous” (Flanagan v Mount Eden Gen. Hosp., 24 NY2d 427, 430-431). Rather, such a claim is based on a physician’s failure to make certain that all temporary holding devices — clamps, temporary stents, and others — have been removed from the body at the close of a single — albeit several-stage — medical proceeding.
Moreover, I believe that an approach which recognizes several-step medical procedures is fully consistent with the Legislature’s intent to place just limits on the judicially established foreign object rule (see, Bill Jacket, L 1975, ch 109, Governor’s Program Bill Mem, at 4; Goldsmith v Howmedica, Inc., 67 NY2d 120, 123; Rodriguez v Manhattan Med. Group, 77 NY2d, supra, at 221; Rockefeller v Moront, 81 NY2d, supra, at 566).
Since I see no intelligible distinction between a clamp and a stent in a multistage medical procedure, I would reverse the order of Supreme Court, and reinstate plaintiff’s cause of action.
Williams, Tom and Andrias, JJ., concur with Milonas, J.; Murphy, P. J., dissents in a separate opinion.Order, Supreme Court, New York County, entered October 20, 1995, affirmed, without costs and disbursements.