| Hull v Smithtown Ctr. for Rehabilitation & Nursing Care |
| 2011 NY Slip Op 08727 [89 AD3d 1062] |
| November 29, 2011 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Kenneth Hull, as Executor of Catherine Hull, Deceased,
Respondent, v Smithtown Center for Rehabilitation & Nursing Care et al., Appellants. |
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Montfort, Healy, McGuire & Salley, Garden City, N.Y. (Donald S. Neumann, Jr., and Michael K.
Chin of counsel), for appellants Jacqueline Morgan and St. Charles Hospital and Rehabilitation Center.
Persing & O'Leary, LLP, Latham, N.Y. (Daniel J. Persing of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, the defendants Smithtown Center for Rehabilitation & Nursing Care and Smithtown Healthcare Management, LLC, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Sweeney, J.), entered September 14, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them as time-barred, and the defendants Jacqueline Morgan and St. Charles Hospital and Rehabilitation Center separately appeal, as limited by their brief, from so much of the same order as denied that branch of their separate motion which was for summary judgment dismissing the complaint insofar as asserted against them as time-barred.
Ordered that the order is affirmed, with one bill of costs.
The defendants failed to establish their prima facie entitlement to judgment as a matter of law in connection with their contention that the complaint sounds in medical malpractice rather than simple negligence and, thus, that the action was untimely pursuant to CPLR 214-a. Accordingly, the Supreme Court properly denied the motion of the defendants Smithtown Center for Rehabilitation & Nursing Care and Smithtown Healthcare Management, LLC (hereinafter together Smithtown), and that branch of the separate motion of the defendants Jacqueline Morgan and St. Charles Hospital and Rehabilitation Center which were for summary judgment, regardless of the sufficiency of the opposing papers (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Smithtown's remaining contention is without merit. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.