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Mastectomy is at the Heart of This Case

The case before the court is one of legal malpractice. The Bronx plaintiff had a bi-lateral mastectomy, which she claims was the result of being misdiagnosed. The plaintiffs are seeking a judgment against the defendants for negligently prosecuting a medical malpractice action on behalf of the plaintiff.

Case Background
In March of 2006, the law firm defendants filed a motion to have the complaint against them dismissed. In October of 2006 the court issued an interim order that directed all of the parties to provide a briefing on the issue of the bankrupt extension. The court reviewed the briefs and heard oral arguments. The court then made the decision to deny the dismissal of the complaint.

In February of 2007, the plaintiffs amended their complaint to add an associate of the legal defendants. The defendants filed a motion to have this complaint dismissed arguing that the complaint is time barred, that the plaintiffs do not have standing to invoke the bankruptcy extension, and that the plaintiffs failed to sufficiently plead fraudulent concealment.

Court Discussion and Decision
The main legal issue in this particular case is whether the Brooklyn defendants have demonstrated as a matter of law that even if they had raised a two year extension in the medical malpractice suit the suit would still have been time barred.

In this particular case, the court finds that the defendants have failed to meet the burden of showing that their failure to assert the bankruptcy tolling of the statute of limitations in the medical malpractice suit could not have deprived the plaintiffs of a judgment in their favor.
For this reason, the court is denying the motion to dismiss the amended complaint. The ruling is in favor of the plaintiffs.

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