McAloon & Friedman, P. C., New York City, for Seymour Handler, defendant.
Heidell, Pittoni, Murphy & Bach, L. L. P., New York City, for Gary Hitzig and others, defendants.
John P. Gianfortune, P. C., Rockville Centre, for plaintiff.
Thomas P. Phelan, J.
This is an action to recover damages for alleged violations of sections 349 and 350 of the General Business Law (first cause of action) and for breach of contract (second cause of action) arising out of three surgical hair transplant procedures. Plaintiff's complaint further alleges, upon information and belief, that " said surgical procedures were performed on or about, July 1991, February 1992 and September 1992, and were in addition to and do not include consultations, and follow up visits for further treatment and care."
Defendants seek dismissal of the plaintiff's causes of action as time barred based upon the three-year statute of limitations for violation of sections 349 and 350 of the General Business Law (CPLR 214 ; see Gaidon v Guardian Life Ins. Co., 96 N.Y.2d 201, 208-209) and the six-year statute of limitations for contract actions (CPLR 213 ). Defendants assert that the respective statutes of limitation commenced running from the date the last procedure was performed on the plaintiff (which is alleged to be July 23, 1993). Since this action was commenced in February 2001, defendants contend that it is time barred.
Addressing plaintiff's General Business Law claims, plaintiff contends that the applicable three-year statute of limitations period did not accrue until he was first called upon to undergo additional surgery and pay additional monies after the date that he was promised by Long Island Medical Associates (LIMA) that the transplant would result in a full head of natural-looking hair.
Soskel places this date sometime in November of 1995 when he was examined by a doctor unrelated to LIMA, who told him for the first time that due to the out-dated and poor work performed by LIMA, his scar would not resolve and his hair would never appear full and natural-looking without extensive
further surgery. Soskel contends that only then did he suffer his injury.
In support of his contention, plaintiff relies upon Gaidon v Guardian Life Ins. Co. (96 N.Y.2d 201, 210) in which the Court wrote, " In general, a cause of action accrues, triggering commencement of the limitations period, when all of the factual circumstances necessary to establish a right of action have occurred, so that the plaintiff would be entitled to relief ... In an action to recover for a liability created or imposed by statute, the statutory language determines the elements of the claim which must exist before the action accrues." (Citations omitted.)
The Gaidon Court then reasoned that since General Business Law § 349 prohibits deceptive business practices and affords a private cause of action to any person injured by such practices, a cause of action under this section accrues when ...