Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed 1, 2 Opposing Affidavits (Affirmations) 3 Reply Affidavits (Affirmations) 4 DECISION/ORDER Upon the foregoing papers in this medical malpractice action, defendants move, pursuant to CPLR §3211(a)(5), to dismiss plaintiff’s complaint in its entirety as barred by the applicable statute of limitations. Plaintiff commenced this action by filing a summons and complaint on November 11, 2019, stating causes of action for medical malpractice, lack of informed consent, and negligent hiring (Summons & Complaint, annexed as Exhibit B to defendants’ motion papers, NYSCEF #1). Issue was joined by defendant Cohen Children’s Medical Center on December 9, 2019, and by defendants Northwell Health, Inc. and Andrew Richard Hong, M.D. on January 2, 2020 (Signed Answers, annexed as Exhibit C to defendants’ motion papers, NYSCEF # 6, 8). Plaintiff served a bill of particulars upon defendants on June 18, 2020 (Plaintiff’s bill of particulars, annexed as Exhibit D to defendants’ motion papers). In her complaint and bill of particulars, plaintiff alleges that defendants departed from acceptable standards of medical practice on or about June 1, 2005 by “failing to properly perform surgical procedures, in negligently and carelessly leaving foreign bodies (surgical staples) misplaced in plaintiff’s body,” resulting in plaintiff’s endometriosis and infertility (Complaint 38; Plaintiff’s bill of particulars 4). As a result of defendants’ alleged malpractice, plaintiff is claiming to have sustained the following injuries: stage two endometriosis, multiple excisions of stage II endometriosis, removal of foreign clip, electrolysis of adhesions, chromotubation, diagnostic hysteroscopy, mesothelial hyperplasia, inflammatory pelvic disease, ovarian neoplasma, pain during intercourse, pain during bowel movement, infertility, diarrhea, constipation, nausea, and fatigue (Id. at 12). The following facts are not in dispute. Plaintiff presented to the Emergency Room at North Shore University Hospital on June 1, 2005 at 3:07 PM, complaining of abdominal pain; she had tenderness in her lower right quadrant and suprapubic areas (Defendants’ Affirmation in Support 6). Plaintiff was 10 years old at the time (Id.). Abdominal and pelvic CT scans with contrast revealed a “fluid filled appendix with a thickened enhancing wall, evidence of inflammation and an enlarged diameter of 9 mm” (Id. at 7). A surgical consult was called, and defendant, Dr. Hong, advised that an appendectomy was necessary (Id.). Dr. Hong performed a laparoscopic appendectomy that evening, and plaintiff’s appendix was removed using an Endo-GIA stapler to close incisions (Id. at 8). Plaintiff was discharged the following day with no complications (Id. at 9). On June 10, 2005, plaintiff returned to Dr. Hong’s office for a postoperative appointment (Id. at 10). Dr. Hong never treated plaintiff after June 10, 2005 (Id.). On April 18, 2019, plaintiff was admitted to Greenwich Hospital for an operative laparoscopy “due to pelvic pain and endometriosis” (Id. at 11). Dr. Kanayama performed the procedure, and he/she diagnosed the plaintiff with stage II endometriosis (Id.). During the procedure, he/she observed “multiple foreign body clips located on the various areas of the pelvic cavity,” and the clips were sent to pathology (Id.). The pathology report indicates that the foreign body clips were seven “gray metallic staples” (Id. at 12; Greenwich Hospital Admission Record at 14-15, annexed as Exhibit G to defendants’ motion papers). In support of their motion to dismiss, defendants contend that plaintiff’s action is barred by the applicable statute of limitations, and that the foreign object toll does not apply to extend the statute of limitations (Defendants’ Affirmation in Support
14, 15, 19). Although the statute of limitations for medical malpractice actions is two-and-a-half years pursuant to CPLR §214-a, defendants explain that under CPLR §208, plaintiff had until June 10, 2015, 10 years after the date of her last treatment to commence an action, because plaintiff was a minor at the time of her appendectomy (Id. at
