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Foley v. New York Blood Center, Inc.

278 A.D.2d 42 Court N.Y. App. Div. Decision date 2000-12-07 English

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p. 42
Michael Foley et al., Respondents, v New York Blood Center, Inc., Defendant, and Mount Sinai Medical Center, Appellant.
[716 NYS2d 858]

Order, Supreme Court, New York County (Elliott Wilk, J.), entered on or about September 7, 1999, which, in an action alleging that plaintiff was transfused with HIV-infected blood during cardiac bypass surgery performed at defendant hospital, granted plaintiffs motion to

p. 43
reargue a prior order, entered on or about February 1, 1999, granting defendant’s post-answer motion to dismiss the complaint as time-barred under CPLR 214-c, and, upon reargument, denied the motion with leave to renew upon proper papers, including an amended answer affirmatively pleading CPLR 214-c as a defense, unanimously affirmed, without costs.

Defendant’s motion to dismiss on the ground of CPLR 214-c was properly denied without prejudice where defendant had served an answer that pleaded only CPLR 214, not CPLR 214-c, as a time bar (see, CPLR 3211 [e]). Concur — Rosenberger, J. P., Williams, Andrias, Buckley and Friedman, JJ.