Articles Posted in New York City

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This is an action to recover legal fees. The plaintiff has moved to dismiss the counter claims made in the verified amended answer of the defendant. The defendant has filed a separate motion for leave to serve a second amended answer and to renew his prior motion to dismiss the complaint.

There are several counterclaims made by the defendant in his proposed answer including a counter claim for fraud, legal malpractice, and breach of fiduciary duty. He also added two additional counter claims in his amended answer, breach of the plain language requirement and breach of judiciary law section 427.

Case Facts
The defendant contends that he has resided in the state of Florida since 2000 and his son lives with his mother in New York. From April of 2002 through February of 2006 a partner of the plaintiff performed legal services for the defendant pursuant to a representation agreement in connection with matters that related to the defendants son and mother.

When the representation period ended the Queens defendant refused to pay the balance of the plaintiff’s legal fees. The defendant submitted a fee dispute to the fee dispute resolution program. A hearing was held and it was determined that the plaintiff was entitled to a portion of the claimed legal fees. As the defendant had already made payments to the plaintiff the plaintiff was ordered to pay the defendant $4,943.09 as an arbitration award.

The plaintiff was unsatisfied with the arbitration award and started this instant action for a trial de novo. The defendant moved to dismiss the complaint on the grounds of arbitration and award, collateral estoppel and res judicata pursuant to CPLR section 3211. The defendant’s motion was denied in its entirety and the plaintiff was found to be within his rights to pursue a trail de novo.

The defendant has now moved to amend his answers again and also to renew his previous motion to have the complaints against him dismissed.

Court Decision
The court has reviewed all of the documents as presented in the case and will grant the defendant’s motion to leave to serve the plaintiff with the second amended answer in regard to his first, second and third counterclaims. The fourth and fifth counterclaims are denied.
The plaintiff’s motion to dismiss the defendant’s counterclaims in the amended complaint in regard to the second and third counterclaims that are made within the amended answer is granted.

The defendant is ordered to serve a copy of this order with a notice of entry to all of the parties involve within twenty days of the orders being entered.
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In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Queens County, dated May 4, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him. On November 11, 1999 the 26-month-old plaintiff was seen by the defendant doctor who diagnosed viral tonsillitis and prescribed medications to alleviate her symptoms. Later that day, the plaintiff developed additional symptoms and was admitted to Elmhurst Hospital Center (hereinafter Elmhurst) on November 12, 1999. The admitting diagnosis was pneumonia based upon a chest X-ray and blood test. During the plaintiff’s 13-day hospital stay, various antibiotic treatments were administered. Shortly after the plaintiff’s discharge from the hospital on November 24, 1999 her mother noticed that the plaintiff did not respond to speech and sound, indicating hearing loss, which was ultimately determined to be complete and permanent.

A Queens Lawyer said that, in 2002 the plaintiff, by her mother, commenced the instant action against the defendant Health & Hospitals Corporation, alleging negligent failure to diagnose and treat meningitis, causing the plaintiff’s permanent hearing loss. In 2005, after defendant doctor was deposed as a nonparty witness, the plaintiff filed an amended complaint adding him as a defendant and alleging that he negligently failed to test for meningitis during the plaintiff’s office visit on November 11, 1999. A Lawyer said that, the Supreme Court denied defendant doctor’s motion for summary judgment dismissing the complaint insofar as asserted against him, holding that conflicting expert medical opinion evidence raised a triable issue of fact.

The issue in this case is whether defendant doctor should be held liable for medical malpractice together with defendant Health & Hospitals Corporation.

The NYC Court in deciding the case said that, on a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Here, defendant doctor established his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert who opined, to a reasonable degree of medical certainty, that defendant doctor’s examination and treatment of the plaintiff on November 11, 1999 did not depart from accepted standards of medical practice and that the plaintiff’s hearing loss was not causally related to treatments rendered by defendant doctor.

Once the defendant doctor made this prima facie showing, the burden shifted to the plaintiff to raise a triable issue of fact. A physician’s affidavit in opposition to a motion for summary judgment must attest to the defendant’s departure from accepted practice, which departure was a competent producing cause of the injury. General and conclusory allegations unsupported by competent evidence are insufficient to defeat a motion for summary judgment.

Here, the court said that the plaintiff’s expert opined that, had defendant doctor conducted proper examination in his office on November 11, 1999 he would have detected more definitive symptoms of meningitis which would have required immediate transfer of the plaintiff to the hospital for a spinal tap, which would have resulted in a firm diagnosis of meningitis and timely antibiotic therapy to salvage the plaintiff’s hearing. The expert’s opinion was based upon a string of assumptions not supported by facts in the record and thus did not raise a triable issue of fact as to whether defendant doctor’s examination and treatment of the plaintiff was a competent producing cause of her injuries.

Accordingly, the Court held that the order is reversed, on the law, with costs, and the motion of the defendant doctor for summary judgment dismissing the complaint insofar as asserted against him is granted.
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This is a legal malpractice action being heard in the Supreme Court in New York County. The plaintiff is a lawyer who has brought forth this action against his former law firm partner. There are three causes of action being considered in this case. The first is professional malpractice, the second is breach of contract, and the third cause of action is a breach of implied covenant of good faith and fair dealing.

The Westchester defendants have moved for an order to dismiss the complaint as time barred by the statute of limitations, as time barred by the doctrine of laches, and for failure to state a cause of action.

Case Background
The plaintiff started this legal malpractice action against the defendants based on alleged failure of the defendants to schedule a deposition of one of the plaintiff’s expert witnesses in connection with a products liability breast implant action that was pending in the United States District Court for the northern district of New York. The plaintiff in the case allegedly suffered from injuries as a result to the exposure from silicone gel from breast implants that ruptured and were made by Baxter Healthcare. The plaintiff retained the defendants as trial counsel to prosecute in this action.

The defendants filed a motion to dismiss the complaint and/or for a stay of the proceedings. In April of 2003, this court issued an opinion that stated the complaint was a nullity because the plaintiff’s counsel was based in New Jersey and did not have an office in New York and was therefore not authorized to file a complaint on behalf of the plaintiff.

Case Discussion and Decision
The defendants argue that the action should be dismissed because the statute of limitations for the malpractice claim has expired. They also argue that the instant action is time barred by the doctrine of laches.

The statute of limitations to recover on a claim of legal malpractice is three years. This is regardless of whether the theory is based in contract or tort. In this particular case the legal malpractice occurred on the 28th of September, 1999, when the defendant’s allegedly failed to produce the expert witness for the case.

The plaintiff brought forth the action in September 2002 because they were worried about the statute of limitations. The action was timely and therefor there is no legal basis to assert the statute of limitations in this case.

The defendants are now contending that because the 2002 action was dismissed as a nullity, the reasoning for the dismissal was paramount and therefore the action should be dismissed. However, the dismissal was a mere technical defect that could have been fixed by the plaintiff seeking counsel in New York or by the counsel of the plaintiff seeking pro hac vice admission.
The court had reviewed the facts that have been brought up in this case and has found that the plaintiff has failed to state a cause of action. For this reason, the defendant’s motion to dismiss the complaint is granted.
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This is an action to recover damages for fraud. The New York City plaintiffs are appealing an order made by the Supreme Court of Suffolk County that granted the defendant’s motion for summary judgment dismissing the complaint against them.

Case Background

The plaintiffs in this case are an infant and his father. In 1987, the plaintiffs settled a medical malpractice action against an insured of the respondent in this case. The settlement included an annuity that would provide payments to the infant plaintiff in the sum of $3000 per month for life. The respondent estimated the present value of the entire settlement package to be $940,180.

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The issue before the court has to do with the Medical Malpractice Reform Act of 1986 that requires the Medical Malpractice Insurance Association to refund the stabilization reserve fund charges that had been collected for excess policies and applied by statute to offset deficits. The plaintiff in the case is challenging the constitutionality of the implementation and enforcement of certain provisions of this act.

Background Information
The Medical Malpractice Insurance Association or MMIA is a non-profit unincorporated association that is a legal entity separate from its members. The MMIA in NYC was created by chapter 109 section 17 of the laws created in 1975. The association was created after the insurer that covered the majority of surgeons and physicians for professional liability stated that they would no longer underwrite this type of insurance policy in the state of New York. The MMIA’s purpose was to provide a market for medical malpractice insurance that was not otherwise readily available.

The MMIA is required to provide medical malpractice insurance to any physician applicant. The primary policy limits provided to the physicians have limits of $1,000,000 per claim and $3,000,000 for all claims in any single year. In 1985 a mandate was created by the legislature that required the primary policy limits to provide excess coverage of at least $1,000,000 per claim and a $3,000,000 aggregate for any policy year to the physicians they insured. In addition, MMIA was required to provide excess coverage to all applicants irrespective of the placement of their medical malpractice coverage.

From the beginning the MMIA has been required to maintain a stabilization reserve fund for the purpose of offsetting its deficits. When this particular action began the MMIA in Manhattan had over $10,000,000 in stabilization reserve fund charges. There was also an unpaid balance for stabilization reserve fund charges that were earned on excess policies that were in effect between July first of 1985 through the 30th of June, 1986.

In July of 1986 the Medical Malpractice Reform Act amended a section of the Insurance Law. The amendment requires the MMIA to refund any excess stabilization reserve fund charges to the hospitals that have paid the premium and surcharge on behalf of their doctors between July first 1985 and June 30th, 1986.

Case Issues and Discussion
MMIA has moved for an order to enjoin the implementation of the provision of the legislations that requires the association to refund stabilization refund charges. The defendants cross moved to dismiss the complaint of MMIA for failure to state a cause of action. The cross motion by the defendant was denied by the motion court and the court enjoined the state from requiring that the MMIA

The main issue at hand is whether or not the new legislation can be implemented retroactively.
Case Decision
The court has reviewed the facts of the case and there is no argument about the fact that the MMIA currently has a deficit of over $80 million. Allowing this law to be retroactively implemented would be detrimental to the association. Therefor the court has ruled in favor of the plaintiff.
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The petitioner in this case is seeking a judgment to require the Superintendent of Insurance to hold a hearing in regard to a decision that he made that reduced the petitioner’s proposed rate increase by approximately 85%. The Superintendent has cross moved to have this petition dismissed.

Case Background
The Long Island petitioner is a non-profit entity that is comprised of insurance companies that write personal liability insurance policies in the state of New York. Membership with the petitioner is required of companies that have the authority to write this type of insurance policy in the state. The petitioner is required to provide medical malpractice insurance to any physician or surgeon that is licensed in the state of New York. The amount of the policy is up to an aggregate limit of $3,000,000.

The petitioner develops and files rates that have to meet certain criteria. The reason for this is to assure the financial soundness of the association without having to charge excessive premiums for the malpractice coverage. The superintendent has the right to disapprove the rate filings, but must state his reasons for doing so.

Case Discussion and Decision
The petitioner filed for a 210% increase in April and again in October. The Superintendent studied the rate filing and that of another malpractice carrier. The independent firm that was used by the Superintendent recommended a rate increase of 107%.

The petitioner is asking for a hearing in order to gather information about the decision that was made by the Superintendent to deny the rate increase. This is not an adversary proceeding.

The court feels that it is within the rights of the petitioner to request this hearing and therefor is settling the case accordingly. A hearing will be held within two months of the date this judgment is entered.
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A Lawyer said that, plaintiff is a provider of no-fault automobile liability insurance policies in New York City and defendants are professional corporations (hereinafter “PCs”) which were owned and operated by medical doctors. According to the pleadings, from 1998 until mid-2001, defendants rendered treatment to persons covered under no-fault policies issued by plaintiff. The covered insured patients were treated by licensed acupuncturists who were employees of defendant medical corporations. The covered insured patients executed facially-valid assignments of their no-fault benefits to defendant corporations. Defendant corporations submitted bills for the treatment provided by these licensed acupuncturists to plaintiff. Plaintiff paid the bills submitted by defendant corporations.

A Westchester source said that, plaintiff filed this action, alleging that defendants had improperly employed acupuncturists and that, based upon this organizational flaw, were operating illegally and were not entitled to the payments that plaintiffs made during the time period cited in the Complaint. The Complaint demands that defendant corporations refund all payments made by plaintiff for services provided by the licensed acupuncturists.

Another source said that, defendants move pursuant to CPLR 3211 to dismiss the Complaint for failure to state a cause of action, while other defendants cross-move pursuant to CPLR 3212 for summary judgment dismissing the Complaint. Plaintiff opposes these motions and filed a cross-motion seeking dismissal of defendant’s counterclaim.

The issues in this case are: whether a medical corporation owned and operated by doctors who do not possess a certificate to practice acupuncture may lawfully employ an acupuncturist; and whether a medical corporation which illegally employs a licensed acupuncturist is entitled to reimbursement by insurers for medical services provided to covered persons pursuant to no-fault policies issued by the insurer.

The Court said that, analysis of these motions begins by examining the claims stated in the Complaint, which lists two causes of action against each named defendant: (1) fraud, alleging that defendants knowingly made false representations to plaintiff to induce plaintiff to pay bills for services which defendants were not authorized to provide; and (2) unjust enrichment, alleging that defendants accepted payments from plaintiff that they knew were illegal and yet still retained the proceeds of said payments.

Before analyzing the causes of action stated in the Complaint it is necessary to review the statutory basis for plaintiff’s theory of recovery. Section 1503(a) of the Business Corporation Law provides that “one or more individuals duly authorized to render the same professional service within the state may organize, or cause to be organized, a professional service corporation for pecuniary profit under this article for the purpose of rendering the same professional service.” Under this statute, only professionals licensed to render the same professional services may organize as a corporation and multi-disciplinary professional practices are disallowed.

Plaintiff contends that defendant PCs have violated this prohibition against multi-disciplinary practices by employing acupuncturists. All of the defendant PCs are organized for the practice of medicine. Acupuncture, according to plaintiff, is a separate discipline that is not subsumed within the practice of medicine. Thus, according to plaintiff, unless at least one shareholder/owner of each of the defendant PCs was certified to practice acupuncture along with being a licensed medical doctor, the defendant PCs could not properly employ an acupuncturist because acupuncture was beyond the scope of the corporation’s expertise.

In order to establish a cause of action for fraud, a plaintiff must allege (1) a misrepresentation of a material fact, (2) falsity, (3) scienter (knowledge of the falsity), (4) reliance upon the false statement and (5) injury. In addition, the Complaint must state with specificity the acts which constituted the fraud. Defendants contend that the Complaint here does not plead the fraud cause of action with sufficient specificity. The Complaint states that “defendants intentionally and knowingly made false and fraudulent statements of material facts to plaintiff, namely that each was lawfully entitled to payment from plaintiff for the acupuncture services provided to each said eligible injured person.” It goes on to allege that these “fraudulent and false statements” were made “to induce plaintiff to pay for the acupuncture services they were not entitled to claim or receive.” Finally, the Complaint states that plaintiff justifiably relied upon the misrepresentations of defendant PCs in rendering payment for the acupuncture services performed.

Such allegations contain sufficient detail to place defendants on notice of the acts which are alleged to have constituted the fraud. Even without further elaboration, defendant PCs would know from these pleadings that plaintiff is alleging that defendant PCs knowingly misled plaintiff to believe they were entitled to be paid for acupuncture services when such payments were, according to plaintiff, illegal and wrongful. Keeping in mind that the statute is not to be interpreted so strictly as to defeat what might otherwise be a valid claim where some knowledge might be peculiarly within the knowledge of the defendant PCs, the present claim is stated in sufficient detail to satisfy CPLR §3016(b)’s specificity requirement.

The theory underlying plaintiff’s fraud claim relies upon the premise that defendants were violating BCL §1503 by employing acupuncturists. Assuming without deciding that plaintiff is correct in this assertion, plaintiff’s claim further asserts that it may recover the payments made to defendant PCs based upon this violation of the Business Corporation Law. Such a right of recovery is not explicit in the statute and defendants contend that no private right of action exists for any purported violation of BCL §1503(a).

Here, plaintiff seeks to recoup payments made to the defendant PCs based solely upon a purported violation of the BCL. It is noteworthy that while the Complaint infers that defendant PCs “knew” that hiring acupuncturists without having a physician certified to practice acupuncture as a corporate shareholder constituted a violation of the Education Law and BCL, plaintiff cannot point to any controlling authority that decisively states such a rule. In fact, the only violation alleged against defendants here is a potentially open question of law that is best resolved by the regulatory agencies which govern this area but have yet to speak definitively on the issue. There are no allegations of deceptive corporate structure as set forth in nearly every other case dealing with this issue. Plaintiff further concedes that the services for which they were billed were actually performed and that they were performed by licensed acupuncturists. Plaintiff’s sole basis for relief is to use the alleged violation of BCL §1503 as a sword, which goes against settled New York decisional law. Since no private right of action exists to recover for a violation of BCL §1503(a), plaintiff’s fraud claim fails to state a cause of action upon which relief may be granted and the cause of action must be dismissed.
Plaintiff’s unjust enrichment claim is similarly unavailing. In order to recover under an unjust enrichment theory, a party must prove (1) the defendants were enriched, (2) at plaintiff’s expense, and (3) that “it is against equity and good conscience to permit defendants to retain what is sought to be recovered”. While plaintiff’s submissions likely satisfy the first two elements of the claim, it fails to establish how equity and good conscience require the return of fees paid for services rendered by defendants. Plaintiff advances its public policy concerns in support of this claim as well, but they are no more convincing in the equitable forum. The facts remain that defendants rendered services, billed for those services and were paid for the services rendered. Plaintiff does not allege that the bills submitted did not accurately reflect the services provided, they do not allege that the services provided were substandard or insufficient to meet the needs of the covered insured persons and they do not allege that the amounts sought in the bills were inappropriate for the work performed. Plaintiffs received exactly what they paid for medical services provided by licensed acupuncturists. Allowing plaintiff to disgorge the fees paid for these services would arguably unjustly enrich plaintiff and, despite plaintiff’s stated concern for the public health problems associated with the alleged improper practice of medical doctors employing acupuncturists, public policy mitigates most strongly in favor of proper compensation for services rendered. Thus, plaintiff has failed to establish the viability of its unjust enrichment cause of action and that claim must also be dismissed.

Accordingly, for the reasons set forth, both the motions of the defendants seeking dismissal of the Complaint for failure to state a claim and the motions of the defendants seeking summary judgment dismissing the Complaint are granted, and the Complaint is dismissed as against all defendants. Plaintiff’s motion for summary judgment seeking dismissal of defendant Eastern Comprehensive Medical Services is granted and the counterclaim is dismissed.
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On January 1, 2004, a man was found almost dead by the New York City fire Department Emergency Medical Staff Officials on 178th Street and Jamaica Avenue in Queens County. He was taken to Mary Immaculate Hospital where he died the following day. There was no identification on his person and he was unresponsive and unable to tell hospital personnel who he was. The hospital staff were not provided with a telephone number for any next of kin and were unable to notify his family. Per hospital policy, the hospital notified the police department. The hospitalfrom that point depended on the police department to notify any next of kin.

On January 3, 2004, the hospital made contact with the Medical Examiner’s Office. It is hospital policy to inquire at the Medical Examiner’s Office if a patient dies within 24 hours of being admitted to the hospital. The Medical Examiner’s Investigator was advised and made notations to that effect in his notes that the decedent’s next of kin had not been located at that time. The hospital contends that at the time that they notified the Medical Examiner’s office, they were no longer responsible for locating the next of kin. They state that that responsibility was transferred to the Medical Examiner’s office.

The Medical Examiner’s office had the man’s body for two months, yet according to his family, made no efforts to identify him or to contact his next of kin during the time that they were in possession of his body. The Medical Examiner’s office also made not attempts to contact the police department to determine if they had identified the man or contacted his next of kin. The hospital maintains that it did all that it could do to find out who the man was and to notify the family. The hospital contends that the failure on the part of the Medical Examiner’s office to notify the family should not be their responsibility.

The family of the man presented a medical face sheet from the hospital that was filled out at the time that the man was admitted into the hospital. It clearly reflects the man’s full name, address, date of birth, and social security number. It states that the man was not transferred to the Medical Examiner’s office until January 4, 2004. The medical report showed a notation on January 2, 2004 from the doctor that stated that a Nursing supervisor would contact the family. The residence was very close to the hospital. The family contends that the hospital mishandled the body of their loved one by not taking any steps to notify them in a timely fashion that their loved one was in the hospital, or that he had become deceased. The laws of New York provide that a family has the right to sue for improper handling of a loved one’s body that prevents the family from being able to recover the body for proper burial. The case must hinge on the emotional effects that the interference with the body created.

The hospital filed a motion for summary judgment releasing them from liability in this case. They contend that they took every reasonable step to locate the next of kin and that they were released from liability at the point where the Medical Examiner’s office took possession of the man’s remains. The court does not agree. The court contends that the hospital had the necessary information in their hands to contact anyone else who lived at the same address as the decedent. Yet, even with this information, they made no attempt to contact the next of kin at that residence. The court denied the summary judgment and allowed the case to go to trial.
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This case is being heard in the Special Term of the Supreme Court of Queens County. NYC in the state of New York. The question before the court is whether the mother of a still born child who alleges that she was caused to endure excruciating pain and unnecessary injury and delay by reason of malpractice of the defendants is able to recover for the alleged emotional and psychic harm that resulted from the still born birth.

Case Discussion
The question before the court is interesting as the defendants of the case have motions for summary judgment to dismiss the complaint against them for failure to state a cause of action that is cognizable under the laws of the state of New York.

The case at hand deals with a medical malpractice action that arises from the obstetrical care that was provided to the plaintiff by the defendant hospital on the second of June, 1981. This is the date that the plaintiff delivered a stillborn fetus.

The plaintiff alleges that while at the defendant hospital she had numerous physicians attending to her pregnancy and delivery. She states that the defendants are guilty of malpractice because they failed to properly anticipate a breach delivery and did not provide competent physicians to handle such an issue.

The defendants tried to deliver the breech baby vaginally. This delayed the delivery of the infant and was extremely painful for the plaintiff. The plaintiff alleges that this was negligent and caused her to suffer from severe and serious physical, emotional, and mental injuries. It is further alleged that this delay in delivery was the cause of the infant being still born.
The defendants are arguing that the plaintiff has not stated a cause of action in the case and is only seeking emotional damages as a result of having a still born baby. The defendants argue that they are not liable for the baby being still born. The defendants offer several cases as evidence to support their case for summary judgment to dismiss the complaint that has been made against them.

Court Decision
Recent legislation in the state of New York allows mothers of still born children who meet certain criteria known as Bovsun criteria, to have their claims recognized as cognizant even if there are no physical injuries in the case. The plaintiff in this matter has met these criteria.
For this reason, the court finds that there are triable issues of fact in this particular case. The plaintiff has met her burden to establish these facts. The court is ruling in favor of the plaintiff in this case. The motion for summary judgment to dismiss the complaint made against them by the defendants is denied.
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Sometime in August of 2002, plaintiff hired a law firm to represent her in a medical malpractice (personal injury) and wrongful death action concerning the death of her husband. According to the law firm hired, a lawyer, who was then an of counsel lawyer of the firm, was assigned to handle plaintiff’s case.

In early 2003, the underlying action for medical malpractice was commenced against defendants: the Medical Center, the Westchester County Health Care Corporation, and certain doctors.

Thereafter, plaintiff’s lawyer severed his relationship with the law firm hired. Plaintiff then opted to continue to be represented by the lawyer and discharged the law firm. However, sometime after, the lawyer also severed his relationship with the plaintiff. Thus, plaintiff’s son continued to handle the case which was later continued by another law firm.

On 14 December 2007, plaintiff, as executrix of the estate of her deceased husband, and individually, commenced the instant action against defendants, the first law firm hired (law-firm-one) and the law firm of the, of counsel, lawyer (law-firm-two), alleging legal malpractice.
Plaintiff alleges that defendants committed legal malpractice by failing to name all potentially liable parties in her underlying medical malpractice action; that, although she ultimately prevailed in her action, the award in the underlying action would have been significantly larger, including substantial economic damages that were not awarded by the jury because the proper parties, who treated the decedent well before the treatment provided by the named defendants in the underlying action, were not named. Allegedly, the underlying complaint represented that counsel was in possession of the relevant medical records and consulted with one or more knowledgeable physicians prior to commencing the foregoing action for medical malpractice and wrongful death. According to plaintiff, it was argued throughout the trial of the underlying action that when decedent first presented to the named defendants, he was already extremely ill and in heart failure. Plaintiff verily believes that the reason decedent was so sick was a direct consequence of the medical malpractice of two doctors who were not included in the medical malpractice action; that, had they been named as defendants within the relevant statute of limitations, the underlying cause of decedent’s condition would have been before the court and the jury in the underlying action, with the likelihood of an increase in damages awarded to plaintiff. On or about 17 December 2004, plaintiff alleges that defendants’ legal services were terminated. By the time she was able to retain another law firm, the statute of limitations had run on the medical malpractice claims that she would have had against the aforesaid two additional physicians who treated her husband, and their respective practices. Plaintiff alleges that defendants acted with negligence, breached their fiduciary duties to plaintiff and breached their contract with plaintiff by virtue of the aforementioned failure to name all responsible parties in the medical malpractice action.

Law-firm-two moves pursuant to CPLR 3211 (a) (1), (5) and (7), and law-firm-one moves for summary judgment pursuant to CPLR 3212 to dismiss plaintiff’s complaint.

The Issues:
Is law-firm-one liable? Is law-firm-two liable?

The Ruling:
As a rule, in a motion to dismiss, a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the cause of action may not be maintained because of the statute of limitations.

Whereas, in a summary judgment, it is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the cause of action has no merit, sufficient to warrant the court as a matter of law to direct judgment in his or her favor. This standard requires that the proponent of a motion for summary judgment make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issues of fact. Thus, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions. Alternatively, to defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact. Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden then shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or to tender an acceptable excuse for his or her failure to do so. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. The opponent must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exist and the issue must be shown to be real, not feigned since a sham or frivolous issue will not preclude summary relief.

On another note, the statute of limitations for a legal malpractice action is three years.
It must be noted that the instant action was commenced on 14 December 2007, that is, when the complaint was filed. The alleged malpractice herein is the law-firm-two’s failure to name additional parties as defendants in the underlying action. Thus, defendant, as the movant, must establish that any alleged malpractice did not occur during the period of the law-firm-two’s representation of the plaintiff. Accordingly, any claim for legal malpractice which accrued prior to 14 December 2004 would be barred.

Here, the relationship between the New York City plaintiff and law-firm-two had already come to an end for purposes of the toll even though the client had not yet retained a new attorney as of November 2004, and even though law-firm-two signed the consent to change attorney on 14 December 2004. The failure of law-firm-two to seek leave to withdraw as counsel, in and of itself, is not a basis to apply the continuous representation doctrine where plaintiff acknowledges receipt of the law-firm-two’s notice of termination of their relationship, where plaintiff considered law-firm-two to have abandoned her action, and where plaintiff began seeking new counsel, all in November 2004. Further, any failure of law-firm-two to prove when the file was actually physically received by plaintiff is likewise inconsequential, given that plaintiff was clearly on notice that law-firm-two was no longer representing her after November 2004. In any event, not only does plaintiff acknowledge receipt of the file, she does not dispute receipt of the letter sent on 8 December 2004 on law-firm-two’s letterhead, indicating law-firm-two’s intent to return the file to her possession. There is no indication that plaintiff believed that law-firm-two would continue to represent her interests until she physically received her file. Thus, the action against law-firm-two is untimely and is dismissed pursuant to CPLR 3211 (a) (5) as against said defendants. The court does not reach the merits of defendants’ motion to dismiss based on the alleged failure to state a cause of action.

As to law-firm-one, the instant legal malpractice cause of action is also time-barred, since the plaintiff commenced the action more than three years after her attorney-client relationship with law-firm-one has ended. It is undisputed that law-firm-one was retained in 2002, and that in August 2004, plaintiff expressly discharged law-firm-one as her counsel. It is uncontested that plaintiff informed law-firm-one that its legal services were no longer needed. Indeed, plaintiff specifically requested, in writing, that law-firm-one cease all legal services on her behalf, and that it transfer her file to law-firm-two. Evidently, plaintiff terminated her relationship with law-firm-one, and expressly indicated her desire to depend on the legal services of another firm, to wit: law-firm-two. Plaintiff’s affidavit bears no indication that she communicated with or intended for law-firm-one to pursue her claim, or indicates that law-firm-one gave her any reason to believe that it was continuing to represent her in any manner subsequent to her discharge of law-firm-one. There is simply no indicia in the record that either law-firm-one or plaintiff were under any understanding that law-firm-one would continue to represent her interests in her underlying action subsequent to her discharge letter of August 2004. Thus, plaintiff’s legal malpractice claim accrued no later than August 2004, when she discharged them as her attorney. Moreover, there is not any indication in the record that law-firm-one performed any legal services on plaintiff’s behalf, or continued to represent plaintiff in the underlying action in any manner beyond the date that plaintiff discharged them. It is uncontested that after three months, in November 2004, law-firm-two informed plaintiff that he no longer wished to continue handling plaintiff’s case. Law-firm-two’s letter indicates that law-firm-two, and not law-firm-one, had been working on plaintiff’s case. Therefore, it cannot be said that the statute of limitations was tolled subsequent to plaintiff’s termination of law-firm-one in August 2004. Plaintiff’s reliance on the fact that the notice of substitution of counsel (or consent to change attorney) was finally executed by plaintiff on 17 December 2004, and substituted plaintiff’s son for law-firm-one, as opposed to law-firm-two, as her counsel, is misplaced. The purpose of CPLR 321 (b) is to afford protection to adverse parties, by eliminating disputes and uncertainty as to whether and when the authority of an attorney representing an opponent terminated, and it has generally been construed to establish the authority of discharged counsel as to adverse parties and not as to the very party who discharged the attorney. The fact that the notice of substitution of counsel between law-firm-one and plaintiff’s son was not signed until 17 December 2004 does not, in and of itself, serve as a basis to toll the statute of limitations under the continuous representation doctrine, since it had been made clear, by plaintiff’s own letter to law-firm-one, that law-firm-two replaced law-firm-one as counsel in August 2004. Thus, having failed to raise a triable issue of fact to overcome law-firm-one’s showing that the action is time-barred as a matter of law, plaintiff’s action is also dismissed as to these defendants.

In sum, the branch of the motion by defendant law-firm-two pursuant to CPLR 3211 (a) (1) and (7) dismissing plaintiff’s complaint is denied; nonetheless, the branch of the motion by defendants law-firm-two pursuant to CPLR 3211 (a) (5) is granted, and the complaint as against said defendants is dismissed; and the motion by defendant law-firm-two pursuant to CPLR 3212 for summary judgment in their favor and against plaintiff is granted, and the complaint against said defendants is dismissed.
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