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VERNON C. RICHMOND ET AL. v. ELLISON V. CAPERS (10/21/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


October 21, 1968

VERNON C. RICHMOND ET AL., APPELLANTS,
v.
ELLISON V. CAPERS, RESPONDENT

Order of the Supreme Court, Ulster County, dated March 4, 1968 and entered in Dutchess County on March 6, 1968, which granted defendant's motion to dismiss the complaint, as barred by the Statute of Limitations (CPLR 3211, subd. [a], par. 5), reversed, on the law, with $10 costs and disbursements, and motion denied. No questions of fact were considered.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

In our opinion, the complaint sounds in malpractice; and the Statute of Limitations as to such cause commences to run at the termination of the course of treatment "for the same or related * * * injuries" (Borgia v. City of New York, 12 N.Y.2d 151, 157). The defendant physician having treated the plaintiff wife for an injury allegedly caused during surgery performed by him, a cause of action based on the injury did not accrue until the termination of the treatment. The action, then, was timely brought.

Disposition

Judgment entered in Dutchess County upon said order on March 6, 1968 vacated.

19681021

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