Kremen v. Benedict P. Morelli & Associates, P.C., 2007 NY Slip Op 31141(U) (N.Y. Sup. Ct. 5/9/2007)
| Citation | 2007 NY Slip Op 31141 |
| Decision Date | 09 May 2007 |
| Docket Number | Motion Seq. No. 001.,0101739/2006. |
| Parties | VICTORIA KREMEN and BORIS KREMEN, Plaintiffs, v. BENEDICT P. MORELLI & ASSOCIATES, P.C., A/K/A MORELLI RATNER, P.C., BENEDICT P. MORELLI, ESQ., DAVID S. RATNER, ESQ., SCHAPIRO & REICH, ESQS., STEVEN SCHAPIRO, ESQ., and PERRY S. REICH, ESQ., Defendants. |
| Court | United States State Supreme Court (New York) |
This legal malpractice action involves an analysis of the interaction between federal bankruptcy laws and state law claims of medical malpractice. In this action, Victoria Kremen (Kremen) and her husband Boris Kremen (collectively, Plaintiffs) seek a judgment against Benedict P. Morelli & Associates, P.C. a/k/a Morelli Ratner, P.C., Benedict P. Morelli, Esq. and David S. Ratner, Esq. (collectively, Defendants), as well as other, for negligently prosecuting a medical malpractice action on their behalf.
More specifically, Plaintiffs allege that Defendants failed to raise the fact, in the underlying medical malpractice action, that Kremen was in bankruptcy, which provided an extension of the limitations period for commencing that action. Plaintiffs further allege that had such fact been raised, the court would have found the action timely, and Plaintiffs would have ultimately obtained a judgment in their favor. Defendants move to dismiss Plaintiffs' complaint for failure to state a cause of action, based solely on the argument that raising the bankruptcy Loll would not have saved the underlying medical malpractice action because it was already time barred when Kremen filed for bankruptcy. By Decision and Order, dated October 23, 2006, (interim decision) the Court requested further briefs on the issue of the application of the bankruptcy Loll. For the reasons stated herein, Defendants' motion to dismiss is denied.
In April 1995, Kremen went to Dr. Susan Kaiser for a medical consultation. Allegedly diagnosed by Dr. Kaiser as having breast cancer, Kremen went to Dr. Steven Brower, for a second opinion. On July 10, 1995, Kremen underwent a bilateral mastectomy performed by Dr. Kaiser. Kremen claimed that she first learned that she was mis-diagnosed with breast cancer on April 14, 1999, when she took her records to another surgeon, and that the mastectomy was unnecessary. On October 14, 1999, Kremen filed for bankruptcy relief under chapter 7, title 11 of the United States Code (Bankruptcy Code). Mr. John Pereira was appointed as bankruptcy trustee in Kremen's chapter 7 case.
On. June 9, 2001, Plaintiffs retained Defendants, as counsel, to commence a medical malpractice action against Dr. Kaiser and Dr. Brower, and other healthcare providers. Defendants were informed of Kremen's bankruptcy filing. On July 21, 2001, Defendants commenced the medical malpractice action in the name of the bankruptcy trustee and Plaintiffs, asserting, among other things, a lack of informed consent claim and a fraudulent concealment claim against the medical malpractice defendants.
In December 2001, Defendants wrote to the bankruptcy trustee requesting him to abandon the medical malpractice action to Kremen, so that she could continue to prosecute the action in her name alone. Apparently, the trustee refused. Thereafter, in November 2002, Defendants moved the bankruptcy court, in effect, for an order compelling the trustee to abandon the action to Kremen. The motion was opposed by the trustee. By order dated January 21, 2003, the bankruptcy court granted the motion, and approved of removing the name of the trustee, as plaintiff, from the caption of the medical malpractice action. The order also denied debtor Kremen's request for a discharge in bankruptcy.
In December 2003, several defendants in the medical. malpractice action were granted summary judgment, dismissing the action as against them. The dismissal of these defendants is not the subject of the instant action. Thereafter, in March 2004, summary judgment was also granted in favor of the remaining defendants, including Dr. Kaiser and Dr. Brower, on the basis that more than 2 1/2 years, the limitations period for a medical malpractice action under CPLR 214-a, had already expired since the date of the alleged malpractice. The trial court also rejected Plaintiffs' claim of fraudulent concealment. Kremen v Brower, M.D. et al., Index No. 112829/01 (J. Carey, Sup Ct NY County 2004). Plaintiffs wanted to appeal, but could riot reach an agreement with Defendants as to legal fee issues. Hence, Plaintiffs retained new counsel, who are the other defendants named in the caption of this action, for the appeal.
The appeal was unsuccessful. However, the appellate court stated in a decision dated March 8, 2005, that:
The complaint was properly dismissed as against Drs. Brower and Chun for lack of evidence of fraudulent concealment estopping them from asserting the statute of limitations ... Concerning Dr. Kaiser, the surgeon who allegedly diagnosed the cancer and who performed the mastectomy, while plaintiff's deposition testimony that Dr. Kaiser told her that she had breast cancer and then concealed that misdiagnosis after receiving negative pathology reports may be sufficient to raise an issue of fact as to fraudulent concealment, plaintiff failed to commence the action within a reasonable time after the estoppel ceased to be operational... Plaintiff admits that she became aware of the alleged misdiagnosis on April 14, 1999, when she took her medical records to another reconstructive surgeon. Her subsequent delay in commencing the instant action until July 2001, two years and three months later, was unreasonable as a matter of law (cf. Harkins v Culleton, 156 AD2d 19, 23-24 [1990], lv dismissed 76 NY2d 936 [1990]).
See Kremen v Brower, M.D. et al., 16 AD3d 156, 157-158 (1st Dept 2005). Relying on the First Department's citation to Harkins v Culleton, Plaintiffs take the position that the appellate court would have found the medical malpractice claim against Dr. Kaiser timely, had Defendants herein raised the fact of Kremen's bankruptcy filing within six months of her discovery of the alleged fraudulent concealment, and the applicable bankruptcy tolling provision.
Thus, in their complaint, Plaintiffs assert that Defendants committed legal malpractice, because they failed to state in the pleadings filed in the medical malpractice action, including the opposition papers to the summary judgment motion by the defendants therein, the fact of Kremen's bankruptcy and of the Bankruptcy Code's extension of the limitations period.
Under section 108 of the Bankruptcy Code, if "applicable nonbankruptcy law" fixes a period within which a debtor may commence an action, and such period has not expired when the debtor tiled for bankruptcy relief, the bankruptcy trustee may commence such an action within two years after the date of the debtor's bankruptcy filing. 11 USC § 108 (a) (2).
Originally ignoring Plaintiffs' estoppel argument, Defendants contended that by the time Kremen filed for bankruptcy relief, the statute of limitations in the medical malpractice action had already expired under CPLR 214-a (on January 19, 1998). Eventually, in their reply, Defendants acknowledged Plaintiffs' argument, which combines the extension of the tolling period under the Bankruptcy Code, with the extension under the principles of equitable estoppel and/or fraudulent concealment. Defendants further contended in their reply that the bankruptcy extension cannot be applied in the way Plaintiffs contemplated, because the principles of equitable estoppel and/or fraudulent concealment are not "applicable nonbankruptcy law" within the meaning of the Bankruptcy Code.
Because the parties did not provide any case law in support of their respective arguments, they were directed, pursuant to this Court's interim decision, to submit memorandum of law regarding whether the Bankruptcy Code could be applied in the manner contemplated by Plaintiffs. Instead of addressing this issue in the memorandum of law, Defendants ignored the Court directive and improperly raised a new argument.1
In considering a CPLR 3211 motion to dismiss, the court's task Richbell Info. Services, Inc. v Jupiter Partners, L.P., 309 AD2d 288, 289 (1st Dept 2003), quoting 511 W. 232nd Owners Corp. v Jennifer Realty Corp., 98 NY2d 144, 151-152 (2002). The pleadings are also to he afforded a "liberal construction," and the court is to "accord plaintiffs the benefit of every possible favorable inference." Leon v Martinez, 84 NY2d 83, 87-88 (1994). While factual allegations contained in a complaint should be accorded "favorable inference," bare legal conclusions of law and inherently incredible facts are not entitled to preferential consideration. Sud v Sud, 211 AD2d 423, 424 (1st Dept 1995).
In this motion, the only issue is whether Defendants have demonstrated, as a matter of law, that even if they had raised the two year extension provided under the Bankruptcy Code (), the medical malpractice action would still have boon time barred.
As noted above, section 108 of the Bankruptcy Code provides in relevant part that: "[i]f applicable nonbankruptcy law ... fixes a period within which the debtor may commence an action, and such period has not expired before the date of the [debtor's] filing of the [bankruptcy] petition, the trustee may commence such action only before ... two years after the order of relief." 11 USC § 108 (a) (2). In turn, section 301 of the Bankruptcy Code provides that "the commencement of a...
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