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Negligent Lawyering Misses Statute of Limitations on Intentional Torts (NY)

October 15, 2019

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<p style="text-align: justify;">Statutes of limitations can be tricky and it’s very important to ensure what category your claim falls or you may be SOL!   This blunder was made apparent in the case of<em> <a href="">Potter v. Zucker Hillside Hosp. (2019 NY Slip Op 07304)</a></em>  Plaintiff, as guardian<em> ad litem</em> for Rodney Carter, commenced an action in October 2011 stemming from an incident in April 2009.  Carter, a paranoid schizophrenic, was admitted as an in-patient at defendant’s hospital and claimed an employee beat him causing loss of vision in his left eye.</p>
<p style="text-align: justify;">Plaintiff’s complaint alleged that Carter was taken down, restrained, and controlled in a careless and negligent manner causing severe injuries and damages.  Defendants were sued under a theory of respondeat superior.</p>
<p style="text-align: justify;">The hospital moved for summary judgment asserting that the cause of action was an intentional tort, not negligence or malpractice and thus, barred by the one-year statute of limitations.  The Supreme Court agreed and granted defendant’s motion.  Plaintiff appealed.  The Second Department affirmed in a decision stating that a court’s job is to look at the substance of the allegations rather than the characterization.  As New York does not recognize a cause of action for negligent assault, the one year statute of limitations for assault and battery would apply.</p>
<p style="text-align: justify;">As a practice point, it is always key to make sure plaintiff’s facts align with the theories alleged in the complaint.  The court looked at Carter’s deposition testimony to establish that assault was the correct cause of action despite the plaintiff’s characterization of a negligent takedown.  The law is often frustratingly form over substance; refreshingly, the Court looked at substance over form this time.  Had plaintiff also pleaded a cause of action based upon negligent supervision or security -- which we understand was referenced, but not specifically pleaded -- the complaint may have survived dismissal.</p>
<p style="text-align: justify;">Thanks to Mehreen Hayay for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.</p>


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