Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:

Upon the foregoing papers in this medical malpractice action, defendants move, pursuant to CPLR § 3211(a)(5), to dismiss plaintiff's complaint in its entirety as barred by the applicable statute of limitations.

Plaintiff commenced this action by filing a summons and complaint on November 11, 2019, stating causes of action for medical malpractice, lack of informed consent, and negligent hiring (Summons & Complaint, annexed as Exhibit B to defendants' motion papers, NYSCEF No.1). Issue was joined by defendant Cohen Children's Medical Center on December 9, 2019, and by defendants Northwell Health, Inc. and Andrew Richard Hong, M.D. on January 2, 2020 (Signed Answers, annexed as Exhibit C to defendants' motion papers, NYSCEF # 6, 8). Plaintiff served a bill of particulars upon defendants on June 18, 2020 (Plaintiff's bill of particulars, annexed as Exhibit D to defendants' motion papers). In her complaint and bill of particulars, plaintiff alleges that defendants departed from acceptable standards of medical practice on or about June 1, 2005 by "failing to properly perform surgical procedures, in negligently and carelessly leaving foreign bodies (surgical staples) misplaced in plaintiff's body," resulting in plaintiff's endometriosis and infertility (Complaint ¶ 38; Plaintiff's bill of particulars ¶ 4). As a result of defendants' alleged malpractice, plaintiff is claiming to have sustained the following injuries: stage two endometriosis, multiple excisions of stage II endometriosis, removal of foreign clip, electrolysis of adhesions, chromotubation, diagnostic hysteroscopy, mesothelial hyperplasia, inflammatory pelvic disease, ovarian neoplasma, pain during intercourse, pain during bowel movement, infertility, diarrhea, constipation, nausea, and fatigue (Id. at ¶ 12).

The following facts are not in dispute. Plaintiff presented to the Emergency Room at North Shore University Hospital on June 1, 2005 at 3:07 PM, complaining of abdominal pain; she had tenderness in her lower right quadrant and suprapubic areas (Defendants' Affirmation in Support ¶ 6). Plaintiff was 10 years old at the time (Id.). Abdominal and pelvic CT scans with contrast revealed a "fluid filled appendix with a thickened enhancing wall, evidence of inflammation and an enlarged diameter of 9 mm" (Id. at ¶ 7). A surgical consult was called, and defendant, Dr. Hong, advised that an appendectomy was necessary (Id.). Dr. Hong performed a laparoscopic appendectomy that evening, and plaintiff's appendix was removed using an Endo-GIA stapler to close incisions (Id. at ¶ 8). Plaintiff was discharged the following day with no complications (Id. at ¶ 9). On June 10, 2005, plaintiff returned to Dr. Hong's office for a postoperative appointment (Id. at ¶ 10). Dr. Hong never treated plaintiff after June 10, 2005 (Id.). On April 18, 2019, plaintiff was admitted to Greenwich Hospital for an operative laparoscopy "due to pelvic pain and endometriosis" (Id. at ¶ 11). Dr. Kanayama performed the procedure, and he/she diagnosed the plaintiff with stage II endometriosis (Id.). During the procedure, he/she observed "multiple foreign body clips located on the various areas of the pelvic cavity," and the clips were sent to pathology (Id.). The pathology report indicates that the foreign body clips were seven "gray metallic staples" (Id. at ¶ 12; Greenwich Hospital Admission Record at 14-15, annexed as Exhibit G to defendants' motion papers).

In support of their motion to dismiss, defendants contend that plaintiff's action is barred by the applicable statute of limitations, and that the foreign object toll does not apply to extend the statute of limitations (Defendants' Affirmation in Support ¶¶ 14, 15, 19). Although the statute of limitations for medical malpractice actions is two-and-a-half years pursuant to CPLR § 214-a, defendants explain that under CPLR § 208, plaintiff had until June 10, 2015, 10 years after the date of her last treatment to commence an action, because plaintiff was a minor at the time of her appendectomy (Id. at ¶¶ 15, 17-18). Defendants allege that the staples found during the April 18, 2019 laparoscopy are fixation devices, not foreign objects, because Dr. Hong intentionally placed the staples to close the incision, and they were never supposed to be removed (Id. at ¶¶ 20, 24). In support of their motion, defendants submit the plaintiff's medical records and an [*2]affidavit from Dr. Hong, who states that "[e]very single staple placed during the course of plaintiff's appendectomy was intended to be a fixation device which was purposefully left in the abdominal cavity at the end of plaintiff's laparoscopic appendectomy" (Affidavit of Dr. Hong at ¶ 6, annexed as Exhibit A to defendants' motion papers).

In opposition to defendants' motion to dismiss, plaintiff argues that the surgical clips/staples found in plaintiff's abdominal wall are foreign bodies, not fixation devices, because Dr. Hong did not intend to place the staples in the location where they were found (Plaintiff's Affirmation in Opposition ¶¶ 8, 9). Further, plaintiff claims that the seven surgical staples served no treatment purpose, and that only the staples placed near the appendix stump and the mesentery were intended and necessary to close the incision (Id.). Plaintiff maintains that she timely commenced the action, because the foreign object toll enumerated in CPLR § 214-a is applicable to this case, allowing her to commence the action within one year of the discovery of the foreign object (Id. at ¶ 5).

In reply, defendants reiterate that the surgical staples were fixation devices, which are excluded from the foreign object toll under CPLR § 214-a (Defendants' Affirmation in Reply ¶ 3). Further, defendants maintain that the foreign object exception to the statute of limitations does not apply in this case, as plaintiff is challenging Dr. Hong's medical judgment by alleging that he negligently placed staples in certain locations (Id. at ¶ 10). Defendants point out that the lay opinion of plaintiff's attorney is irrelevant regarding the location and number of staples that should be used during an appendectomy, and plaintiff's counsel fails to cite to any cases where a surgical staple was deemed to be a foreign object (Id. at ¶¶ 12, 18). Defendants suggest that even if the seven staples were placed in the wrong location, this would not transform them into foreign objects based on the holding in Rockefeller v. Moront, 81 NY2d 560 [1993]) (Id. at ¶¶ 6-8).

Under CPLR § 214-a, an action for medical malpractice must be commenced within "two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same injury, illness or condition which gave rise to the said act, omission, or failure" (CPLR § 214-a). However, there is an exception "where the action is based upon the discovery of a foreign object in the body of the patient" (Id.). In that case, the "action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier" (Id.). The statute specifically excludes "chemical compound[s], fixation devices[s], or prosthetic aid[s] or device[s]" from the definition of "foreign object" (Id.). Under CPLR § 208, if the alleged malpractice occurs while plaintiff is a minor, plaintiff must commence the action within ten years "after the cause of action accrues" (CPLR § 208).

To determine whether "an object which remains in the patient constitutes a foreign object," courts "consider the nature of the materials implanted in a patient, as well as their intended function" (Rockefeller, 81 NY2d at 564). If the object is "introduced into the patient's body to serve a temporary medical function for the duration of the surgery," but is "intended to be removed after the procedure's completion," it constitutes a foreign object (Id.). Common examples include "surgical clamps, scalpels, and sponges;" "when [these] objects are left behind, no assessment of the medical professional's expert judgment or discretion in failing to remove them is necessary to establish negligence" (Id.). However, no toll applies where the object remaining in the patient constitutes a fixation device, which are "placed in the patient with the [*3]intention that they will remain to serve some continuing treatment purpose" (Id.). Fixation devices that are placed in the wrong area do not become foreign objects (Id. at 565).

On a motion to dismiss an action as time-barred pursuant to CPLR § 3211(a)(5), "a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired" (Leace v. Kohlroser, 151 AD3d 707, 708 [2d. Dept. 2017]). If the defendant sustains its burden, "the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period" (Id.).

Here, defendants have met their prima facie burden on this motion by providing plaintiff's medical/hospital records, complaint, and citing to the statute of limitations under CPLR § 214-a, and the infancy toll under CPLR § 208. Based on the fact that the last date of treatment was June 10, 2005, the action was commenced in November 2019, and the infancy toll under CPLR § 208 expired on June 10, 2015, defendants have demonstrated "prima facie, that the time within which to commence the action has expired" (Leace, 151 AD3d at 708). Defendants also explain that the foreign object exception to the statute of limitations under CPLR § 214-a is inapplicable. In support of this contention, they provided an affidavit from Dr. Hong, stating that the staples were fixation devices intended to remain in plaintiff's body, not foreign objects.

In opposition, plaintiff has failed to raise a triable issue of fact as to whether the statute of limitations was tolled. Plaintiff contends that certain staples found in the abdominal wall were not intended to be placed by Dr. Hong, as they served no treatment purpose, and that these extra staples are foreign objects, which tolled the statute of limitations until the staples were discovered during the laparoscopy on April 18, 2019. However, this argument is virtually indistinguishable from plaintiff's argument in Rockefeller, where a suture was found on plaintiff's vas deferens many years after hernia repair surgery (Rockefeller, 81 NY2d at 562). In that case, both the trial and appellate court held that the suture was a foreign object based on the fact that there was "no evidence that [the] suture was originally inserted for any specific treatment purpose" (Rockefeller v. Moront, 182 AD2d 160, 163 [3d. Dept. 1992], rev'd 81 NY2d 560, 566 [1993]). However, the Court of Appeals reversed, holding that "a fixation device [that] was improperly installed or affixed during performance of an operation does not fall within the rationale of the foreign object exception" (Id. at 565). Since plaintiff's argument is based on the location of the staples, she has failed to demonstrate that the foreign object exception applies, as evidenced by the holding in Rockefeller. Consideration of the "nature of the materials implanted in [the] patient [and] their intended function" confirms that the staples were fixation devices, not foreign objects (Id. at 564). Staples are meant to be left in a patient after surgery to secure incisions, unlike surgical clamps, sponges, and scalpels. Dr. Hong's affidavit supports that the staples were fixation devices, and plaintiff's speculation is not enough to raise an issue of fact (Cooper v. Edinbergh, 75 AD2d 757, 758-59 [1st Dept.1980]; Tandlich v. Oxford Medical Group, P.C., 2008 WL 8200578 [Sup Ct, Westchester County 2008]). Based on the legislative intent that the foreign object exception remain narrow, to be applied in cases where "there is no risk of a belated false, or frivolous claim; no possible causal break between the negligence and the injury; no issue of diagnosis, judgment or discretion;" and "no undue impairment of the ability to defend the claim," the court declines to apply the foreign object exception to the seven staples that were discovered in this case (LaBarbera v. New York Eye & Ear Infirmary, 230 AD2d 303, 305-06 [1st Dept. 1997]). Defendants' motion to dismiss is granted.

This constitutes the decision and order of the Court.