Friedlander v. Ariel

— Order, Supreme Court, New York County (Price, J.), entered April 22,1982, denying the motion for summary judgment of the defendant Doctors Hospital, unanimously reversed, on the law, the motion is granted and the complaint is dismissed against this defendant, without costs. On February 3, 1981, the plaintiff served defendant hospital with a summons and complaint, which alleges that defendant hospital, as well as two individual defendant doctors, Irving Ariel (Ariel) and Youngick Lee, failed to diagnose a cancer in plaintiff’s throat. After joining issue, the defendant hospital moved for summary judgment on the basis of the defense of the Statute of Limitations. Since the alleged malpractice occurred after July 1, 1975, the applicable Statute of Limitations is two years and six months (CPLR 214-a). It is undisputed that Dr. Ariel was furnished biopsy reports of pathologists of defendant hospital. Plaintiff’s counsel’s affirmation contends that Dr. Ariel used these reports in treating plaintiff and that the last time he treated 629 plaintiff was July 25, 1978. If plaintiff was actually treated on that date, his action would be timely. No affidavit was offered in support of that treatment date from anyone with knowledge of the actual facts such as Dr. Ariel or the plaintiff. Counsel does not claim in his affirmation to have any personal knowledge of the facts. This type of attorney affirmation “has no probative value” (Di Sabato v Soffes, 9 AD2d 297, 301). Unlike the plaintiff, the defendant’s position is supported by proof. Defendant offers Dr. Ariel’s examination before trial. Ariel unequivocally testified that he last treated plaintiff on June 20,1978. Based upon this date, an action to be timely had to have been commenced on or before December 20, 1980. However, plaintiff did not commence his action against defendant until February 3, 1981. We find inappro-: priate our dissenting brothers’ reference to a letter outside the record, despite the fact that this court, after careful consideration, unanimously denied a motion to include that letter in the record. Our review of this record leads us to conclude Special Term erred in denying defendant’s motion since “[plaintiff’s opposing papers are insufficient to create a factual issue” (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343). Concur — Murphy, P. J., Ross and Alexander, JJ.