Abraham v. Brooklyn Hospital , 114 A.D.2d 825 ( 1985 )

—In an action to recover damages for personal injuries, defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Pino, J.), dated July 25, 1984, as granted that branch of plaintiffs motion which was to dismiss the affirmative defense of the Statute of Limitations.

Order reversed, insofar as appealed from, without costs or disbursements, and the above-noted branch of plaintiffs motion denied.

Plaintiff was taken to the emergency room of defendant hospital on September 23, 1981 for treatment of back pain. A complaint alleging negligence and medical malpractice was served on the hospital and treating physician in or about November 1982. Defendants pleaded, among other things, the affirmative defense of the Statute of Limitations, alleging the pleadings and examinations before trial established the gravamen of plaintiffs claim was assault and battery. Plaintiff moved, inter alia, to dismiss the affirmative defense, contending that the complaint limited itself to negligence and malpractice causes of action.

The record reveals a question of fact as to whether defendants could be found guilty of assault or malpractice. Therefore, it was error to dismiss the defense of the Statute of Limitations (see, Santangelo v Parke Davis & Co., 77 AD2d 566; Francisco v Maniglia, 57 AD2d 807). Mangano, J. P., Gibbons, Thompson and Kunzeman, JJ., concur.