Green v. Associated Medical ProfessionalsGreen v. Associated Medical Professionals
Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered March 13, 2012. The order denied the motion of defendant Timothy E. Kendrick, RPAC, to dismiss the complaint against him.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced these medical malpractice actions seeking damages arising from the alleged failure of
With respect to appeal No. 1, we note that “[a]n action for medical . . . malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (
We conclude that plaintiffs met that burden. “[U]nder the ‘continuous treatment doctrine,’ a Statute of Limitations or a notice of claim period does not begin to run until ‘the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ ” (Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998], quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]; see Hilts v FF Thompson Health Sys., Inc. [appeal No. 2], 78 AD3d 1689, 1691 [2010]). “The toll of the continuous treatment doctrine was created to enforce the view that a patient should not be required to interrupt corrective medical treatment by a physician and undermine the continuing trust in the physician-patient relationship in order to ensure the timeliness of a medical malpractice action” (Young, 91 NY2d at 296; see Rizk v Cohen, 73 NY2d 98, 104 [1989]). It thus follows that ” ‘[t]he continuous treatment doctrine may be
With respect to appeal No. 2, we address at the outset two procedural issues concerning the motions to dismiss the complaints for lack of capacity to sue.
First, we note that, although SUA was a moving defendant in appeal No. 2, was named in the affidavit of service of the notice of appeal as a defendant represented by counsel, and seeks relief in defendants’ joint appellate brief in appeal No. 2, it was not named as an appellant in the notice of appeal. Pursuant to
Second, we note that AMP was not named as a movant in defendants’ respective motion papers in appeal No. 2, but the court characterized AMP as a movant in the order in appeal No. 2. Plaintiffs do not contend on appeal that the court erred in doing so, and we likewise deem AMP to have been a movant (see
We agree with defendants in appeal No. 2 that the complaints should have been dismissed because plaintiffs lack capacity to sue. Here, plaintiffs filed for chapter 7 bankruptcy protection on April 22, 2009 without listing a potential medical malpractice claim as an asset, and they obtained a bankruptcy discharge on August 3, 2009. “The failure of . . . plaintiff[s] to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which the plaintiff[s] knew or should have known existed at the time, deprive[s] the plaintiff[s] of the legal capacity to sue subsequently on that cause of action” (Whelan v Longo, 23 AD3d 459, 460 [2005], affd 7 NY3d 821 [2006]; see R. Della Realty Corp. v Block 6222 Constr. Corp., 65 AD3d 1323, 1323 [2009]; Technology Outsource Solutions, LLC v ENI Tech., Inc., 21 AD3d 1280, 1281-1282 [2005]; see generally Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 196-197 [1987]; Dischiavi v Calli [appeal No. 2], 68 AD3d 1691, 1692-1693 [2009]). Inasmuch as plaintiffs acknowledge that they did not list the instant malpractice claims on their 2009 bankruptcy petition, we must determine when plaintiffs’ claims accrued, whether plaintiffs knew or should have known of those claims at the time of that bankruptcy filing, and what effect, if any, the bankruptcy proceeding has on plaintiffs’ capacity to sue. We note that the bankruptcy proceeding was reopened by the United States Bankruptcy Court for the Northern District of New York during the pendency of this appeal.
With respect to the issue of accrual, we note that “[a]n action in medical malpractice ‘accrues’ at the date of the original negligent act or omission, [and] subsequent continuous treatment does not change or extend the accrual date but serves only to toll the running of the applicable Statute of Limitations” (Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634 [1991]; see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295 [1998]). Here, in this medical malpractice case based on the alleged failure of defendants to render a proper diagnosis for plaintiff, the accrual date could be no later than approximately April 2008, when plaintiff‘s cancer returned. Inasmuch as plaintiffs filed for bankruptcy protection in April 2009, we conclude that plaintiffs’ claims accrued prior to the bankruptcy filing.
With respect to the issue whether plaintiffs should have known of their instant claims at the time of the bankruptcy filing, we note that “plaintiff[s‘] knowledge of the facts giving rise to the claim[s], rather than [their] knowledge of [their] legal right[s], is decisive” (Cafferty v Thompson, 223 AD2d 99, 101 [1996], lv denied 88 NY2d 815 [1996] [emphasis added]; see Hansen v Madani, 263 AD2d 881, 883 [1999]). “Neither ignorance of the law nor inadvertent mistake excuses a plaintiff‘s failure to list such a claim as a potential asset in the bankruptcy petition” (Hutchinson v Chana Weller, DDS, PLLC, 93 AD3d 509, 510 [2012]). Here, although they might not have known that defendants’ alleged failure to render a proper diagnosis was actionable, on the record before us we conclude that plaintiffs knew of the circumstances of plaintiff‘s treatment with defendants and plaintiff‘s cancer, i.e., the facts giving rise to the malpractice claims, prior to the bankruptcy filing.
Finally, with respect to the issue of the reopening of the bankruptcy proceeding, we note that, “[i]n light of the defect based on a lack of capacity to sue, . . . the trustee must commence a
DENNIS GREEN et al., Respondents, v ASSOCIATED MEDICAL PROFESSIONALS OF NY, PLLC, et al., Appellants. (Action No. 1.) DENNIS GREEN et al., Respondents, v SYRACUSE UROLOGY ASSOCIATES, P.C., Appellant. (Action No. 2.) DENNIS GREEN et al., Respondents, v MICHAEL JOSEPH KENDRICK, M.D., Appellant. (Action No. 3.) (Appeal No. 2.) [974 NYS2d 879]—Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered October 2, 2012. The order, inter alia, denied the motion of defendants to dismiss the complaints.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motions are granted and the complaints are dismissed without prejudice.
Same memorandum as in Green v Associated Med. Professionals of NY, PLLC (111 AD3d 1430 [2013]). Present—Smith, J.P., Centra, Fahey and Whalen, JJ.