Pages Numbered Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-2 Opposing Affidavits (Affirmations) 3-4 Reply Affidavits (Affirmations) 5-6 Affidavit (Affirmation) Other Papers Upon the foregoing papers, it is ORDERED that the motion by the defendant NYCO Chemists III d/b/a White’s Apothecary for an order, pursuant to CPLR 3211(a)(5) and (a) (7), dismissing the complaint and the motion by the defendant Ralph Gibson, MD for summary judgment are determined as follows. The plaintiff commenced this medical malpractice action against the defendant Ralph Gibson, MD, alleging, inter alia, that Gibson overprescribed opioids, narcotics and other medications without properly monitoring, mitigating or accounting for potential drug interactions, side effects and the plaintiff’s history with opioid addiction. The complaint also includes a cause of action for negligence against the defendant NYCO Chemists III d/b/a White’s Apothecary (White’s), the pharmacy that filled the plaintiff’s prescriptions. The complaint alleges that White’s negligently dispensed opioid and benzodiazepine medications to the plaintiff despite a lack of medical purpose. Gibson moves for summary judgment on the grounds that the action is barred by the statute of limitations. White’s moves, pursuant to CPLR 3211(a)(5) and (a)(7), to dismiss the complaint as untimely or, in the alternative, for failure to state a cause of action. Initially, the defendants contend that the action is untimely because the plaintiff was last seen by Gibson in December 2018 and the complaint was not filed until January 2022. The plaintiff contends that the statute of limitations was tolled by a series of executive orders issued by the Governor as a result of the COVID-19 pandemic. The executive orders covered a period of 228 days from March 20, 2020 to November 3, 2020. The Appellate Division, Second Department has specifically held that the executive orders constituted a toll of the limitations period and not merely a suspension (see Brash v. Richards, 195 AD3d 582; see also Matter of Roach v. Cornell Univ., 207 AD3d 931). A toll does not extend the statute of limitations indefinitely but suspends the running of the applicable statute of limitations for a finite time period and “the period of the toll is excluded from the calculation of the time in which the plaintiff can commence an action” (Chavez v. Occidental Chemical Corp., 35 NY3d 492, 505 n 8; see Brash v. Richards, supra; Matter of Roach v. Cornell Univ., supra). Thus, the period of time that the executive orders were in effect is not included in calculating the statute of limitations. Under these circumstances, the plaintiff’s complaint is timely (see e.g. US Bank v. Mattiello, 186 AD3d 1565). Accordingly, the motion by Gibson for summary judgment is denied. The branch of the motion by White’s, pursuant to CPLR 3211(a)(5), is also denied. In considering a motion to dismiss a complaint for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d 83, 87; Sasidharan v. Piverger, 145 AD3d 814; T. Mina Supply Inc v. Clemente Bros. Contr. Corp., 139 AD3d 1040; Clarke v. Laidlaw Transit, 125 AD3d 920). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference (see Grant v. DiFeo, 165 AD3d 897; Kupersmith v. Winged Foot Golf Club, 38 AD3d 847). A pharmacist cannot be held liable for negligence in the absence of evidence that he or she failed to fill a prescription precisely as directed by the prescribing physician or that the prescription was so clearly contraindicated that ordinary prudence required the pharmacist to take additional measures before dispensing the medication (see Abrams v. Bute, 138 AD3d 179). Here, the complaint alleges that White’s negligently dispensed opioid and benzodiazepine medications to the plaintiff despite a lack of medical purpose but there is no allegation that the pharmacy had any knowledge of the plaintiff’s medical condition. Although the complaint alleges that the dosage prescribed by Gibson was significantly higher than the recommended threshold, there is no allegation that the prescriptions were contraindicated on their face, such as if the dosage of the drug prescribed fell below or exceeded the medically acceptable range of dosages that should be provided under any circumstance. In the absence of such allegations, the complaint is insufficient to state a cause of action against the pharmacy (see Burton v. Sciano, 110 AD3d 1435; Brumaghim v. Eckel, 94 AD3d 1391; Abrams v. Bute, supra). Accordingly, the motion by White’s is granted and the complaint is dismissed insofar as asserted against White’s. Dated: November 15, 2022
