Court of Appeals of the State of New York
Simcuski v. Saeli
44 N.Y.2d 442 (N.Y. 1978) • 406 N.Y.S.2d 259
Decided May 4, 1978
Argued March 27, 1978
Decided May 4, 1978
447
Appeal from the Appellate Division of the
Supreme Court in the Fourth Judicial Department,
443 GEORGE G. INGLEHART, J. *443
Irwin Birnbaum and Robert D. Romeo for
445 appellant. *445 John Ganotis and George F. Mould
446 for respondent. *446
444 *444
JONES, J.
We hold that this complaint by a patient against
her treating physician sets forth a cause of action
based on intentional fraud as well as a cause of
action in negligence for medical malpractice. We
further conclude that, because of the physician's
alleged subsequent intentional concealment of the
malpractice and misrepresentation as to its cure,
the time within which the action in negligence
could be brought was not limited to the then
applicable three-year statutory period of
limitations and that on the present motion to
dismiss the complaint it cannot be said that the
action was not thereafter commenced within a
reasonable time after discovery of the malpractice.
Finally we hold that the Statute of Limitations
applicable to the claim for damages based on the
intentional fraud is the six-year statute. We note
that different measures of damages will be
applicable to the two causes of action.
•
377 N.E.2d 713
On defendant's present motion to dismiss the
complaint under CPLR 3211 (subd [a], par 5) on
the ground that the *447 plaintiff's claims are
barred by the Statute of Limitations, we accept the
allegations of the complaint and the admissible
portions of plaintiff's supporting affidavits (CPLR
3211, subd [c]). On October 19, 1970 Dr. Saeli
performed a surgical excision of a node from
plaintiff's neck. Plaintiff alleges that during the
operation on her neck the surgeon negligently
injured a spinal-accessory nerve in her neck and
also injured branches of her cervical plexus.
Following the operation plaintiff told her surgeon
that she was experiencing numbness in the right
side of her face and neck and that it was difficult
and painful for her to raise her right arm. It is
alleged that the physician was aware of the
negligent manner in which he had performed the
surgery and aware, too, that as a result of his
negligence plaintiff had suffered a potentially
permanent injury. It is further alleged that the
physician willfully, falsely and fraudulently told
plaintiff that her postoperative problems, pain and
difficulties were transient and that they would
disappear if she would continue a regimen of
physiotherapy which he had prescribed and which
was then being given by Dr. Lane. Plaintiff
continued with the physiotherapy prescribed by
Dr. Saeli until October, 1974. In the meantime she
had moved to Syracuse, New York, where she
sought further medical advice. In January, 1974
she was first apprised by the Syracuse physician of
the true nature of her injury and that it probably
had been caused at the time of her surgery. This
doctor's diagnosis was substantially confirmed in
October, 1974 by a professor of medicine,
1
 Simcuski v. Saeli
specializing in neurology, at Upstate Medical
Center in Syracuse, who also advised that
reanastomosis of the sectioned nerve four years
after the surgery would not be a physiologically
successful procedure. It is further alleged that Dr.
Saeli had intentionally withheld information from
plaintiff as to the true nature and source of her
injury, in consequence of which she was deprived
of the opportunity for cure of her condition.
The present action against Dr. Saeli was
commenced in April, 1976.1 Prior to service of an
answer, Dr. Saeli moved to dismiss the complaint
under CPLR 3211 (subd [a], par 5) on the ground
that the cause or causes of action alleged were
448 *448 barred by the Statute of Limitations. Plaintiff
cross-moved for leave to amend her complaint
specifically to include a cause of action for
malpractice. Supreme Court denied defendant's
motion to dismiss and granted plaintiff leave to
amend her complaint as requested. On appeal, the
Appellate Division reversed, granted defendant's
motion and dismissed the complaint. Plaintiff
thereupon appealed as of right to our court.
1 Dr. Lane, the physiotherapist, had died
prior to the commencement of this action.
Lincoln First Bank as executor of his estate
was named a codefendant and service was
effected on the executor in May, 1976. The
codefendant did not participate in the
present motion to dismiss and is not
otherwise directly involved in the present
appeal.
In our view the complaint sufficiently sets forth
two causes of action although not explicitly or
separately denominated — one in negligence for
medical malpractice on the part of Dr. Saeli in
connection with the surgical excision of the node
on October 19, 1970, the other for an intentional
tort in knowingly and fraudulently misinforming
plaintiff as to her physical condition and
misrepresenting that physiotherapy would produce
a cure.2 Our analysis begins with the consideration
of the cause of action in negligence.
44 N.Y.2d 442 (N.Y. 1978)
2 Because we think that the complaint as it
stands sufficiently pleads these two causes
of action and that no further amendment of
the complaint is necessary to include a
cause of action for malpractice, we treat as
presently academic the dispostions below
with respect to denial of plaintiff's cross
motion for leave to serve an amended
complaint. (Cf. CPLR 3025, subd [a].)
The complaint sufficiently sets forth a cause of
action for medical malpractice; the critical issue is
whether this cause of action was barred by the
then applicable three-year Statute of Limitations
(CPLR 214, subd 6). Normally the statute would
have precluded institution in April, 1976 of a
claim for damages for malpractice alleged to have
occurred in October, 1970. This complaint,
however, further alleges that defendant
intentionally concealed the alleged malpractice
from plaintiff and falsely assured her of effective
treatment, as a result of which plaintiff did not
discover the injury to the nerve until October,
1974. In this circumstance principles of equitable
estoppel are applicable to relieve plaintiff from the
proscriptions of the statute. As noted by Mr.
Justice EARLE C. BASTOW in Erbe v Lincoln
Rochester Trust Co. ( 13 A.D.2d 211, 213, mot for
rearg and mot for lv to app den 14 A.D.2d 509,
app dsmd 11 N.Y.2d 754): "Fraudulent
representations may play a dual role. They may be
the basis for an independent action for fraud. They
may also, in equity, be a basis for an equitable
estoppel barring the defendants from invoking the
Statute of Limitations as against a cause of action
for breach of fiduciary relations."
It is the rule that a defendant may be estopped to
449 plead *449 the Statute of Limitations where
plaintiff was induced by fraud, misrepresentations
or deception to refrain from filing a timely action.
(General Stencils v Chiappa, 18 N.Y.2d 125; Erbe
v Lincoln Rochester Trust Co., 13 A.D.2d 211,
mot for rearg and mot for lv to app den 14 A.D.2d
509, app dsmd 11 N.Y.2d 754, supra; see Fraud,
Misrepresentation, or Deception as Estopping
Reliance on Statute of Limitations, Ann., 43
2
 Simcuski v. Saeli
ALR3d 429.) The allegations of her complaint
bring this plaintiff within the shelter of this rule.
The elements of reliance by plaintiff on the
alleged misrepresentations as the cause of her
failure sooner to institute the action for
malpractice and of justification for such reliance,
both necessarily to be established by her, are
sufficiently pleaded within the fair intendment of
the allegations of this complaint.
From an examination of prior cases in our court,
including the records and briefs, it appears that in
one case, without written exposition, the court
rejected recognition and application of the
doctrine of equitable estoppel to extend the period
of limitations in medical malpractice cases —
Ranalli v Breed ( 277 N.Y. 630). (Cf. Rokita v
Bushwick Hosp. [Germaine], 7 N.Y.2d 710.) Both
of those cases were decided prior to our court's
decision in General Stencils v Chiappa ( 18
N.Y.2d 125, supra), however, and the
unarticulated determination in Ranalli must be
deemed to have been overruled by that later
decision. The doctrine has been applied in other
States in circumstances which are legally
indistinguishable from the present. (Bowman v
McPheeters, 77 Cal.App.2d 795; Stafford v Shulz,
42 Cal.2d 767; Guy v Schuldt, 236 Ind. 101;
Adams v Ison, 249 S.W.2d 791 [Ky]; cf. Schaffer v
Larzelere, 410 Pa. 402.) The quality of the
relationship between physician and patient, with
confidence normally reposed by the patient in the
physician and the unquestioning reliance which
such relationship may be expected to engender in
the patient, make application of the doctrine
peculiarly appropriate in such cases.
It is as important to determine the effect of the
doctrine of equitable estoppel as it is to determine
that it applies. If the conduct relied on (fraud,
misrepresentation or other deception) has ceased
to be operational within the otherwise applicable
period of limitations (or perhaps within a
reasonable time prior to the expiration of such
period), many courts have denied application of
the doctrine on the ground that the period during
44 N.Y.2d 442 (N.Y. 1978)
which the plaintiff was justifiably lulled into
inactivity had expired prior to the termination of
450 the statutory *450 period, and that the plaintiff had
thereafter had sufficient time to commence his
action prior to the expiration of the period of
limitations. (E.g., 509 Sixth Ave. Corp. v New York
City Tr. Auth., 24 A.D.2d 975; see Plaintiff's
Diligence as Affecting His Right to Have
Defendant Estopped From Pleading the Statute of
Limitations, Ann., 44 ALR3d 760, §§ 5, 6, pp
768-774; Fraud, Misrepresentation, or Deception
as Estopping Reliance on Statute of Limitations,
Ann., 43 ALR3d 429, § 6, pp 453-454.) That is
not the present situation. Plaintiff has alleged that
her discovery of the malpractice in this case (the
point at which the conduct here relied on ceased to
be operational) did not occur until October, 1974
(or possibly in January of that year if inference be
drawn from the letter of her Syracuse doctor dated
January 9, 1974 submitted in opposition to the
motion). Whichever the month of discovery in
1974, the three-year Statute of Limitations had
already expired in October, 1973.
Where, as here, the conduct relied on ceases to be
operational after the expiration of the period of
limitations, two approaches may be discerned in
the cases. By one, further delay on the part of the
plaintiff in commencing his action may be held to
be subject to the counterdefense of laches to be
pleaded and proved by the defendant (see
Plaintiff's Diligence as Affecting His Right to
Have Defendant Estopped From Pleading the
Statute of Limitations, Ann., 44 ALR3d 760, § 4,
p 767). The preferable analysis, however, holds
that due diligence on the part of the plaintiff in
bringing his action is an essential element for the
applicability of the doctrine of equitable estoppel,
to be demonstrated by the plaintiff when he seeks
the shelter of the doctrine (see Plaintiff's Diligence
as Affecting His Right to Have Defendant
Estopped From Pleading the Statute of
Limitations, Ann., 44 ALR3d 760, § 7, pp 774-
779). Under this approach, which we endorse, the
burden is on the plaintiff to establish that the
3
 Simcuski v. Saeli
action was brought within a reasonable time after
the facts giving rise to the estoppel have ceased to
be operational. Whether in any particular instance
the plaintiff will have discharged his responsibility
of due diligence in this regard must necessarily
depend on all the relevant circumstances. The
length of the legislatively prescribed period of
limitations is sometimes said to be relevant, and
courts have held that in no event will the plaintiff
be found to have exercised the required diligence
if his action is deferred beyond the date which
451 would be marked by the *451 reapplication of the
statutory period, i.e., that the length of the
statutory period itself sets an outside limit on what
will be regarded as due diligence. (See Plaintiff's
Diligence as Affecting His Right to Have
Defendant Estopped From Pleading the Statute of
Limitations, Ann., 44 ALR3d 760, § 8, pp 775-
776). In the present case such an outside limit was
not exceeded; the action was brought less than
three years after discovery in 1974. It is not
possible or appropriate, however, on the present
motion addressed to the pleading, presenting us as
it must with only a skeletal record, to determine
whether this plaintiff met her obligation of due
diligence when she instituted the present action in
April, 1976. It suffices for disposition of the
present appeal to note our conclusion that it cannot
now be determined as a matter of law that the
reasonable time for bringing the present action had
expired prior to its institution in April, 1976.
In passing we observe that if it is established that
plaintiff is not precluded from prosecuting the
cause of action in negligence and she proves that
cause on the merits, the measure of damages
which she will be entitled to recover will be that
normally associated with medical malpractice
actions in situations such as the present.
We turn then to consideration of the other cause of
action, noting that it asserts a claim in fraud as an
intentional tort.3 The essential elements, here
alleged or within the reasonable intendment of the
complaint, are knowledge on the part of the
physician of the fact of his malpractice and of his
44 N.Y.2d 442 (N.Y. 1978)
patient's injury in consequence thereof, coupled
with a subsequent intentional, material
misrepresentation by him to his patient known by
him to be false at the time it was made, and on
which the patient relied to his damage — in this
case, defendant's intentionally concealing from his
patient the fact of the malpractice and thereafter
fraudulently misstating that the therapy prescribed
would effect a cure. This is more than another
aspect of the malpractice or even another act of
alleged negligent malpractice on the part of the
treating physician; the complaint alleges an
452 intentional fraud — that *452 Dr. Saeli, knowing it
to be untrue yet expecting his patient to rely on his
advice, advised her that physiotherapy would
produce a cure, in consequence of which
fraudulent misrepresentation the patient was
deprived of the opportunity for cure of the
condition initially caused by the doctor's alleged
malpractice. If these allegations are proved they
will establish an intentional tort, separate from and
subsequent to the malpractice claim. (Calabrese v
Bickley, 1 A.D.2d 874.) Recovery of damages in
such case is governed by the six-year Statute of
Limitations under CPLR 213 (subd 8). The
application of the three-year Statute of Limitations
is not mandated by the circumstance that the fraud
alleged arises as a sequel to an alleged
malpractice.4
3 No cause of action is set forth in the
complaint in this case postulated on the
theory that plaintiff was fraudulently
prevented from bringing her action for
alleged malpractice until barred by the
Statute of Limitations and that she is
entitled to recover the damages caused her
by such fraud (see Fraud and Deceit:
Liability in Damages for Preventing
Bringing of Action Before Its Being Barred
by Statute of Limitations, Ann., 33 ALR3d
1077).
4 We observe that the alleged tortious
conduct in this instance occurred prior to
the adoption of CPLR 214-a (L 1975, ch
109, § 6, eff July 1, 1975). There is thus no
4
 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

basis here for any assertion that by the physicians to a greater exposure to liability in
enactment of that statute the Legislature consequence of errors of professional judgment at
intended to prescribe a statutory period of a time when there is legitimate concern both from
limitations with respect to all claims
the standpoint of the profession and the public as
arising out of the physician-patient
to the economic import of recently ballooning
relationship no matter on what legal theory
malpractice recoveries and thus to run counter to
predicated.
or to flout the general policy direction articulated
In reaching this determination, we recognize and by the Legislature, it is appropriate to stress
approve, but distinguish, cases which hold that, certain aspects of the present case and the theories
without more, concealment by a physician or of liability on which we sustain this complaint.
failure to disclose his own malpractice does not
At the outset we observe that the exposure to
give rise to a cause of action in fraud or deceit
liability we here discuss is not based on errors of
separate and different from the customary
professional judgment; it is predicated on proof of
malpractice action, thereby entitling the plaintiff
the commission of an intentional tort, in this
to bring his action within the longer period limited
instance, fraud. As to that cause of action:
for such claims. (E.g., Golia v Health Ins. Plan of
Greater N.Y., 6 A.D.2d 884, affd 7 N.Y.2d 931; First, it must be established that the physician
Ranalli v Breed, 277 N.Y. 630, supra; Conklin v knew (or demonstrably had reason to know) of the
Draper, 229 App. Div. 227, affd 254 N.Y. 620; fact of his malpractice and of the injury suffered
Tulloch v Haselo, 218 App. Div. 313.) Such by his patient in consequence thereof.
nondisclosure or concealment may affect the
Second, it must be established that, knowing it to
damages recoverable, or, conceivably in a proper
be false at the time, the physician thereafter made
case in conjunction with other factors, provide a
material, factual misrepresentation to the patient
foundation for seeking to invoke the doctrine of
with respect to the subject matter of the
equitable estoppel to extend the applicable period
malpractice and the therapy appropriate to its cure,
of limitations. Standing alone such nondisclosure
on which the patient justifiably relied.
or concealment will not, however, serve as the
basis for a distinct cause of action in fraud. Third, all elements of the intentional tort of fraud
must be established by clear and convincing
We observe that, as in the instance of fraud claims
evidence. Recognizing, too, the hazards of
generally, this plaintiff, too, will be required to
proliferating litigation of baseless claims, attention
prove her claim by clear and convincing evidence
is drawn to the requirements of CPLR 3016 (subd
(Rudman v Cowles Communications, 30 N.Y.2d 1,
[b]). While, of course, motions to dismiss under
10; see 24 N.Y. Jur, Fraud and Deceit, § 284, p
CPLR 3211 are properly addressed to the
371). If she succeeds in this respect, the available
allegations set forth in the complaint,5 on motions
measure of her damages will be that applicable in
for summary judgment under CPLR 3212
fraud actions, i.e., damages caused by the fraud, as
evidentiary proof in admissible form must be
453 distinguished *453 in this case from damages
tendered in support of all the elements of the
occasioned by the alleged malpractice.
alleged cause of action.
In 1975 our Legislature determined as a matter of 5 (But cf. Rovello v Orofino Realty Co., 40
policy to limit the extent of liability in medical
N.Y.2d 633 .)
malpractice claims when it adopted a more
stringent Statute of Limitations (CPLR 214-a; L Fourth, if there is not an available, efficacious
1975, ch 109, § 6). Lest the implications of our remedy or cure which the plaintiff is diverted from
present decision be misapprehended as subjecting undertaking in consequence of the intentional,

5
 Simcuski v. Saeli
fraudulent misrepresentation — as in many
instances of medical malpractice there may not
454 *454 be — there will normally be only minimal
damages, if any. It will be necessary to
demonstrate that the condition caused by the
malpractice could have been corrected or
alleviated. Thus, in the present case, if it can be
shown that at the time of Dr. Saeli's alleged
fraudulent misrepresentations it was already too
late to undertake a reanastomosis of the severed
nerve, this plaintiff will have sustained little or no
damages in consequence of the alleged fraud. If
only a partial cure were then possible, damages
would be assessable on that basis. Recovery
would be greatest, of course, if plaintiff were
diverted from what could otherwise have been a
complete cure.
Accordingly, it will be seen that the present
decision is not to be expected to open the
proverbial floodgates. On the other hand, in
human terms it would be unthinkable today not to
hold a professional person liable for knowingly
and intentionally misleading his patient in
consequence of which, to the physician's
foreknowledge, the patient was deprived of an
opportunity for escape from a medical
predicament which the physician by his own
negligence had initially inflicted on his patient.
With respect to the application of the doctrine of
equitable estoppel to a defense of Statute of
Limitations pleaded in a malpractice action, again
we are concerned with an intentional, not merely
negligent, wrong — the purposeful concealment
and misrepresentation of the fact and
consequences of the malpractice. It would not be
tolerable to permit a physician by whose fraud,
misrepresentation or deception his patient has
been induced to delay filing legal proceedings
until after the time limited by statute to reap the
benefits of his own misconduct.
For the reasons stated the order of the Appellate
Division should be reversed, with costs to abide
the event, and the order of Supreme Court denying
defendant's motion to dismiss reinstated.
44 N.Y.2d 442 (N.Y. 1978)
COOKE, J. (concurring).
I concur in the underlying reasoning and result
arrived at in the majority opinion but do not find it
necessary to subscribe to all of the implications
which may affect this or other cases when the
merits may be reached by motion or trial.
FUCHSBERG, J. (concurring).
Though I wholeheartedly join in the disposition of
this case and of the questions necessary to its
determination, I find aspects of the majority
opinion sufficiently disturbing to compel me to
455 comment. *455
For one, the court's indorsement of cases which
are said to have held that mere (p 452)
"concealment by a physician or failure to diclose
his own malpractice" does not toll the Statute of
Limitations is both peripheral and unnecessary to
today's decision. Moreover, it suffers from more
than the ordinary weakness of dictum. It
gratuitously renews the blessing, given at an
earlier time and in a different clime, to a
proposition whose soundness has, in the
intervening years, been the object of widespread
and increasing criticism, much of which
characterizes willful nondisclosure as
"constructive fraud" (Morrison v Acton, 68 Ariz.
27; Prosser, Torts [4th ed], § 30, pp 144-145;
Sacks, Statutes of Limitations and Undiscovered
Malpractice, 16 Clev Marsh L Rev 65, 72; 2
Louisell and Williams, Medical Malpractice, pars
13.06-13.09; 32 ATLA LJ 260-265; cf. Flanagan
v Mount Eden Gen. Hosp., 24 N.Y.2d 427,
disapproving Conklin v Draper, 229 App. Div.
227, affd 254 N.Y. 620).
Most especially in this situation — where, as we
all recognize, a balance must be struck between
according a reasonable measure of justice to
patients and giving adequate protection to
physicians subjected to delayed suits — appraisal
or reappraisal should await direct confrontation in
a case on point. In such circumstances, simple
logic and long experience teach that, absent
6
 Simcuski v. Saeli
immediacy of a need to decide, the rush to present
judgment, however well-intentioned,
impermissibly enhances the ever-present risk that,
by the time the question does arise directly, further
study and later events will have turned the
premature pronouncement of yesterday into a
jurisprudential obstacle of tomorrow (Cooke v
New Riv. Co., 38 Ch Div 56, 70-71 [1888]
[BOWEN, L.J.]; cf. Smith v Hedges, 223 N.Y.
176, 184 [CARDOZO, J., dissenting]).
I also refuse to join in what I regard as the equally
unnecessary and, so far as the record reveals,
unfounded factual and qualitative assumptions
implicit in phrases such as opening the (p 454)
"floodgates" (p 453) "ballooning malpractice
recoveries" and "legitimate concern both from the
standpoint of the profession and the public as to
the economic import" of malpractice recoveries.
Such expressions, which omit the concerns of
those injured by medical negligence, are, I
respectfully suggest, best avoided. All the more is
that so in a situation where, as has been widely
reported and openly admitted, large sums have
been expended by interested parties to influence
public opinion (see Aitken, Medical Malpractice:
456 *456 The Alleged "Crisis" in Perspective, 1976 Ins
LJ 90; Charbouneau, Medical Malpractice Crisis:
Fact or Fiction?, 3 Orange County BJ 139).
Indeed, the factors alluded to by the comments I
find objectionable are probably more suitable for
exploration and consideration in a legislative
rather than a judicial forum (see, for example, U.S.
Department of Health, Education and Welfare,
Report of the Secretary's Commission on Medical
Malpractice, No. [OS] 73-88 [1973]; see, also,
Elliot L. Sagall, M.D., Medical Malpractice: Are
the Doctors Right?, Trial, Vol 10, No. 4, p 59;
Miller, Malpractice and You, 1975 Ins LJ 722).
In that context, the passage of the single bill to
which the majority refers (L 1975, ch 109) hardly
supports the so-called legislative (p 453) "general
policy direction" on which it rationalizes the
restrictive nature of its writing. In 1976, the year
44 N.Y.2d 442 (N.Y. 1978)
after that bill was enacted, after extensive hearings
the officially designated "McGill Commission",
on which the medical profession was prominently
represented, reported to the Legislature (and the
Governor) that, because "any further reductions of
the statute of limitations in medical malpractice
actions would restrict patients' rights without any
correlative improvement in premium rates and
insurance availability, the Panel makes no formal
recommendations for changes in the statute of
limitations" (Report of the Special Advisory Panel
on Medical Malpractice of the State of New York,
p 37 [1976]). Thereafter efforts at constriction
have consistently failed to win legislative favor
(see, e.g., Sen Intro No. S-9, Assem Intro No. A-
3290 [1977 Session]; Sen Intro No. S-3672,
Assem Intro No. A-5127 [1977 Session]; Sen
Intro No. S-7858 [1976 Session]; Sen Intro No. S-
4786-A [1976 Session]; Sen Intro No. S-8700
[1976 Session]; Sen Intro No. S-8751 [1976
Session]; Sen Intro No. S-8752 [1976 Session];
Sen Intro No. S-8753 [1976 Session]; Sen Intro
No. S-8754 [1976 Session]; Sen Intro No. S-8755
[1976 Session]; Sen Intro No. S-8756 [1976
Session]; Assem Intro No. A-8779 [1976 Session];
Assem Intro No. A-11344 [1976 Session]).
When thus rejected, such efforts — whether fueled
by legislative lobbying, or entrancing
editorializing, or just plain propagandizing —
form no foundation for public policy. Moreover, as
to the overemphasis on "spectres of assertedly
prohibitive cost", fanciful or real, we ought here to
apply our own recently stated injunction that,
while "[a] court cannot responsibly be wholly
457 indifferent to the economic impact likely to *457
attend its decisions * * *, neither can the prospect
of financial impact dictate the judicial outcome"
(Brooklyn Union Gas Co. v New York State
Human Rights Appeal Bd., 41 N.Y.2d 84, 90). A
fortiori, in this case, where essentially we focus on
a liability, not a damage, question, the quantum of
the latter in any event would be subject, as in all
cases, to judicial safeguards against excessiveness
7
 Simcuski v. Saeli 44 N.Y.2d 442 (N.Y. 1978)

— or inadequacy (CPLR 5522; see O'Connor v separate memorandum; Judge FUCHSBERG

Papertsian, 309 N.Y. 465; 7 Weinstein-Korn- concurs in result in a separate opinion.
Miller, NY Civ Prac, pars 5522.03, 5522.04).
458 Order reversed, etc. *458
Accordingly, I merely join in the result.

Chief Judge BREITEL and Judges JASEN,

GABRIELLI, and WACHTLER concur with
Judge JONES; Judge COOKE concurs in a