Ramirez v. St. Luke's Hospital Center ( 1992 )

Order, Supreme Court, New York County (Helen Freedman, J.), entered November 26, 1991, which denied the motion of defendant St. Luke’s Hospital Center to dismiss the complaint on the ground that the action was barred by the statute of limitations, unanimously reversed, on the law, and the complaint dismissed, without costs. The Clerk is directed to dismiss and sever the complaint as against defendant-appellant St. Luke’s Hospital Center.

This action was brought in 1989 on behalf of the infant plaintiff, who, it is alleged, was injured through the negligence of the defendants at his birth or during the period directly following his birth in 1978, and, as a result, suffers from permanent brain damage causing seizures and mental retardation. The two years and six months statute of limitations applicable to causes of action for medical malpractice under CPLR 214-a may be tolled during a plaintiff’s infancy for a maximum of ten years from the date of accrual (CPLR 208). This ten year period runs from the date of any negligent act or omission and not from the date of the termination of any continuous treatment (Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630). Thus, the within action, brought in 1989, more than ten years from the date of the alleged negligence, was not timely commenced and must be dismissed. Concur — Milonas, J. P., Ellerin, Ross, Asch and Kassal, JJ.