WIESENTHAL v. WEINBERG

Failure to rebut medical evidence demonstrating conformity with accepted medical practice was fatal to the cause of action for malpractice ( see Pan v. Coburn, 95 AD2d 670). Dr. Weinberg's implant of a silicone gel prosthesis into plaintiff Margery Wiesenthal's breast, allegedly against her express wishes, was correctly deemed a cause of action for battery, which was dismissed as time-barred ( see Messina v. Matarasso, 284 AD2d 32). There was no estoppel against asserting a statute of limitations defense since plaintiffs failed to demonstrate forbearance from bringing suit based on any misrepresentation by Dr. Weinberg ( see Simcuski v. Saeli, 44 NY2d 442, 449-450). Moreover, plaintiffs demonstrated no injuries, much less any attributable to the alleged fraud as opposed to the battery itself ( see Atton v. Bier, 12 AD3d 240).