Proewig v. Zaino

In a medical malpractice action to recover damages for personal injuries and wrongful death, plaintiff appeals from an order of the Supreme Court, Nassau County, entered November 8, 1976, which granted defendant’s motion to dismiss the complaint on the ground of Statute of Limitations. Order affirmed, without costs or disbursements. Plaintiff’s testate allegedly contracted and died of leukemia in 1974, due to radioactive phosphorous treatments administered. in 1965 and 1966. Plaintiff alleges that the negligence of the defendant in administering those treatments for a blood disorder was the cause of the leukemia. Following the death of the decedent, this action was commenced. Defendant’s motion pursuant to CPLR 3211 (subd [a], par 5) to dismiss the action on the ground that it was not commenced within three years from the date of its accrual was granted. (The applicable Statute of Limitations is contained in former CPLR 214 (subd 6) as the "act, omission or failure” occurred prior to July 1, 1975, the effective date of CPLR 214-a [see L 1975, ch 109, § 37].) We hold that the cause of action accrued in July, 1966, at the time of the last administration of the radioactive phosphorous (see Schwartz v Heyden Newport Chem. Corp., 12 NY2d 212). Hopkins, J. P., Margett, Damiani and Rabin, JJ., concur.