Toepp v. Myers Community Hospital

—Order unanimously reversed on the law without costs, motion granted and amended complaint against defendant Graham R. Huckell, M.D. dismissed. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Elfriede Toepp (plaintiff) when Graham R. Huckell, M.D. (defendant) inadvertently used a bandage containing a surgical or hypodermic needle while applying a cast to plaintiffs foot. The needle became lodged in plaintiffs foot, allegedly resulting in the development of osteomyelitis. Defendant moved to dismiss the complaint against him as barred by the 21/2-year Statute of Limitations applicable to medical malpractice actions {see, CPLR 214-a). Plaintiffs opposed the motion on the ground that the amended complaint that had been served sounds in negligence, not medical malpractice. Supreme Court erred in denying defendant’s motion. A complaint sounds in medical malpractice rather than ordinary negligence where the challenged conduct “constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician” (Bleiler v Bodnar, 65 NY2d 65, 72; see, Cullinan v Pignataro, 266 AD2d 807, 808; cf., Weiner v Lenox Hill Hosp., 88 NY2d 784, 788). Here, the challenged conduct “constituted an integral part of the process of rendering medical treatment” to plaintiff and therefore must be characterized as malpractice (Scott v Uljanov, 74 NY2d 673, 675). Because this action was commenced more than 2V2 years after the alleged medical malpractice occurred, it must be dismissed against defendant as untimely (see, CPLR 214-a; Cullinan v Pignataro, supra, at 808). (Appeal from Order of Supreme Court, Monroe County, Bergin, J. — Dismiss Pleading.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.