BROOKLYN, N.Y. (Legal Newsline) – The alleged victim of sexual assault by her doctor will get another chance to hold him and his practice liable.
The New York Appellate Division, Second Department ruled Jan. 20 to reinstate one dismissed claim against Dr. Gerald Weintraub, a physician who allegedly rubbed his erect penis against a woman’s body during a full-body examination of her.
The plaintiff, known as Jane Doe in court documents, says he also fondled her breasts during the February 2015 appointment.
Weintraub successfully moved to dismiss the claims against him because they were filed after a one-year statute of limitations. The appeals court agreed with most of that Kings County ruling but said a claim under the Victims of Violent Crime Protection Act is subject to a six-year statute of limitations, meaning, making Doe’s filed in time.
His practice, Advantagecare Physicians, initially used the same argument to fight the case, but the appeals court found a three-year statute of limitations applied to those claims against it.
“While the plaintiff’s damages may have been caused by Weintraub’s alleged battery and assault, liability against Advantagecare is not based on an allegation that it intentionally harmed the plaintiff, but that it was negligent,” the decision says.
“Thus, Advantagecare failed to establish, prima facie, that the three-year statute of limitations for negligence did not apply to the causes of action interposed by the plaintiff against it.”
The appeals court did agree with the trial court’s decision not to let Doe amend her lawsuit, finding the proposed changes were “patently devoid of merit.”