Mikoll, J. P. (dissenting). We respectfully dissent.
This court had occasion to address the "foreign object” exception in Vinciguerra v Jameson (153 AD2d 452). In circumstances similar to the instant case, the "foreign object” exception was found applicable where hemoclips used to control bleeding during surgery were mistakenly placed on a patient’s ureter instead of a blood vessel, causing damage to the patient. Involved herein is the placement of a suture on the vas deferens of plaintiff Mark Rockefeller (hereinafter plaintiff) by defendant George P. Moront which, it is alleged, is not normally, usually or customarily sutured during a herniorraphy.
Since Vinciguerra, the Court of Appeals has revisited the question of what constitutes a "foreign object” in Rodriguez v Manhattan Med. Group (77 NY2d 217). In that case, the plaintiff and her husband sued the defendant clinic and the treating physician for malpractice because of the treating physician’s failure to discover an intrauterine device which the plaintiff had inserted into her uterus as a birth control measure and which she sought to have removed. The court noted that following its earlier decision in Flanagan v Mount Eden Gen. Hosp. (24 NY2d 427), several lower court decisions had attempted to amplify the narrow exception fashioned therein regarding the "foreign object” doctrine, but that the 1975 enactment of CPLR 214-a curtailed further judicial expansion of the "foreign object” doctrine. CPLR 214-a specifically excluded fixation devices from the "foreign object” exception to the traditional Statute of Limitations rule in malpractice actions.
Although this case arose prior to the enactment of CPLR 214-a, we are nonetheless bound by the expression of legislative intent that Flanagan v Mount Eden Gen. Hosp. (supra) "not be broadened beyond its existing confines” (Matter of Beary v City of Rye, 44 NY2d 398, 415; see, Rodriguez v Manhattan Med. Group, supra, at 221-222). As related to "fixation devices”, including clamps, hemoclips and sutures, *165we read Rodriguez as limiting the application of Flanagan to cases where an object is "accidentally * * * left inside the patient’s body” at the time of surgery (Rodriguez v Manhattan Med. Group, supra, at 220) and not where the object is deliberately, albeit negligently, placed in the patient (see, supra, at 222; McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C214-a:3, at 603; see also, Mitchell v Abitol, 130 AD2d 633). As such, we conclude that plaintiff’s cause of action accrued on June 23, 1971, when the suture was attached to plaintiff’s vas deferens, and is time barred. We similarly conclude that our prior decision in Vinciguerra v Jameson (supra) has no further validity.
We would therefore modify Supreme Court’s order by dismissing plaintiff’s complaint as time barred.
Crew III and Harvey, JJ., concur with Yesawich Jr., J.; Mikoll, J. P., and Mercure, J., dissent in an opinion by Mikoll, J. P.
Ordered that the order is modified, on the law, without costs, by providing that the affirmative defense of the Statute of Limitations is dismissed without prejudice, and, as so modified, affirmed.