A defendant who seeks dismissal of a cause of action on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired. The burden then shifts to the nonmoving party to raise a question of fact as to the applicability of an exception to the statute of limitations, as to whether the statute of limitations was tolled, or as to whether the action was actually commenced within the applicable limitations period.
Generally, an action to recover damages for medical malpractice "'must be commenced within two years and six months of the act, omission or failure complained of," pursuant to CPLR 214-a. However, where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of the time the plaintiff knew or reasonably should have known of such alleged negligent act or omission, pursuant to CPLR 214-a[b].
Ciancarelli v. Timmins, NY Slip Op 01793 (2d Dep't April 3, 2024)
