IMMEDIATE v. ST. JOHN'S QUEENS HOSP.


48 N.Y.2d 671 (1979)

Helen Immediate, as Administratrix of The Estate of Louis J. Immediate, Deceased, Appellant, v. St. John's Queens Hospital, Defendant, and Joseph S. Spindler, Respondent.

Court of Appeals of the State of New York.

Decided October 11, 1979.


Attorney(s) appearing for the Case

Lee H. Brandon for appellant.

Steven Di Joseph, Thomas R. Newman and Peter G. Monaghan for respondents.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.


MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Concededly, this medical malpractice action for wrongful death against respondent physician was not commenced within two years after decedent's death. Appellant's assertion in this court that the physician is estopped from asserting the Statute of Limitations by reason of his fraudulent concealment of his wrongdoing must be rejected as appellant did not assert a claim of fraud or fraudulent concealment of the alleged malpractice. Furthermore, no evidentiary facts supporting any such claim were submitted to the court by appellant in opposition to respondent's motion for summary judgment. (Alvord & Swift v Muller Constr. Co., 46 N.Y.2d 276, 281.)

Appellant's contention that respondent insufficiently pleaded the Statute of Limitations is also without merit. It was sufficient under CPLR 3013 that respondent pleaded the "statute of limitations" as a defense; it was not required to identify the statutory section relied on or to specify the applicable period of limitations. Thus, respondent's motion was properly granted.

Order affirmed.


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