Practice point: To estop the assertion of a statute of limitations defense, plaintiff must establish by clear and convincing evidence that the action was not timely commenced because of defendant’s fraud, deception or misrepresentation.
Practitioners should note that the statute will not be tolled when plaintiff failed to plead either fraud or fraudulent concealment, but only alleged medical malpractice based on defendant's failure to appreciate the information contained in a radiology report.
Case: Bayuk v. Gilbert, NY Slip Op 09460 (1st Dept. 2008)
The opinion is here.
