Rhodes v Dilena

Jul 15, 2026
2021-06743
Versions:

Dell & Dean, PLLC (Joseph G. Dell and Horn Appellate Group, Brooklyn, NY [Scott T. Horn and Andrew J. Fisher], of counsel), for appellants.

Martin Clearwater & Bell LLP, East Meadow, NY (Barbara D. Goldberg and Daniel L. Freidlin of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (David J. Gugerty, J.), entered September 13, 2021. The order, insofar as appealed from, granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the complaint as sought to recover damages for negligent failure to diagnose cancer or a malignant tumor allegedly committed prior to December 11, 2015, and the complaint insofar as asserted against the defendant Robert M. Nadell as time-barred.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion which were for summary judgment dismissing so much of the complaint as sought to recover damages for negligent failure to diagnose cancer or a malignant tumor allegedly committed prior to December 11, 2015, and the complaint insofar as asserted against the defendant Robert M. Nadell as time-barred are denied.

On June 11, 2018, the plaintiff Tara Rhodes, and her husband suing derivatively, commenced this action, alleging, inter alia, that the defendants Robert M. Nadell and Matthew Dilena failed to timely diagnose and treat Rhodes‘s breast cancer. The defendants subsequently moved, among other things, for summary judgment dismissing so much of the complaint as sought to recover damages for negligent failure to diagnose cancer or a malignant tumor allegedly committed prior to December 11, 2015, and the complaint insofar as asserted against Nadell as time-barred. In an order entered September 13, 2021, the Supreme Court, inter alia, granted those branches of the defendants’ motion. The plaintiffs appeal.

Effective January 31, 2018, the New York Legislature enacted a discovery rule for negligent failure to diagnose cancer or a malignant tumor (see L 2018, ch 1). The law applies to acts, omissions, or failures occurring on or after January 31, 2018 (see L 2018, ch 1, § 5), as well as to acts, omissions, or failures occurring on or after July 31, 2015 (see L 2018, ch 1, § 6).

The causes of action arising from negligent failure to diagnose cancer accrued on October 23, 2014, when the defendants failed to advise Rhodes to submit to additional testing, such as a mammogram. However, the 2018 enactment also includes a provision providing for the revival of certain causes of action, such that an action may be commenced within six months after the effective date, i.e., by July 31, 2018, when it alleges a failure to diagnose cancer or a malignant tumor, and when it became time-barred within 10 months prior to the effective date of the statute—January 31, 2018, that is, on or after March 31, 2017 (see L 2018, ch 1, § 4; see also Mula v Sasson, 181 AD3d 686, 687-688; Francis P. Bensel et al., Personal Injury Practice in New York § 5:87 [West‘s NY Prac Series Dec. 2018 update]). Here, the causes of action qualify for revival pursuant to that provision, as they became time-barred in April 2017, within the 10-month period prior to the act‘s effective date, and this action was commenced on June 11, 2018, prior to the July 31, 2018 deadline (see Mula v Sasson, 181 AD3d at 687).

The parties’ remaining contentions either are without merit, are not properly before this Court, or need not be addressed in light of our determination.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court