Articles Posted in Westchester County

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The defendants have moved for an order to amend the caption that recently appointed the plaintiff as the administrator of the estate and upon the amendment to have the complaint against them dismissed.

Case Facts
The Westchester plaintiff both individually and as the administrator of the estate of the deceased, started this action against the defendants to recover damages for medical malpractice and wrongful death. The plaintiff alleges that the care given to his mother was negligent up until the time that she passed away.

The plaintiff alleges that the defendant hospital failed to diagnose the decedent with lung cancer, and this lack of diagnosis resulted in her death on the third of September, 2008.
The plaintiff started this action in December of 2009. At the time the plaintiff brought forth the action he had not been issued the letters of administration naming him as executor and granting him the right to bring suit on behalf of the estate. For this reason, he nominated himself as the proposed administrator as he was the next of kin and the only child of the decedent.

Case Discussion
The Suffolk defendants have moved to have the complaints against them dismissed on the ground that it is barred by the statute of limitations and/or that the complaint fails to state a cause of action. To support the motion the defendants argue that the plaintiff failed to serve a timely notice of claim. They further state that the alleged failure of diagnosing the decedent’s lung cancer occurred more than 90 days before the plaintiff’s notice of claim and for this reason the notice of claim is untimely.

The defendants further argue that the plaintiff lacks the capacity to commence with a wrongful death claim because he was not designated as the legal representative for the decedent’s estate at the time the action was started.

In opposition of this, the plaintiff states that he has now received the letters of administration for the estate and that none of the defendants were prejudiced by him starting the action before he was named as the estate’s administrator. The plaintiff further argues that he is the only heir of the decedent and therefore was the only person that could have started the claim.

Court Decision
Based on the information that has been provided to the court the complaint against the defendant hospital corporation is dismissed entirely. The wrongful death claim against one of the doctor defendants is dismissed as well. Additionally, the medical malpractice claim against this particular doctor is dismissed as time barred.

The wrongful death claim made against the other hospital defendant is dismissed in its entirety as well as any of the medical malpractice claims that occurred before the third of March, 2006. These complaints are deemed to be time barred.
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The Bronx plaintiff in this case is appealing an order from the Supreme Court of Westchester County. The order from the court denied the plaintiff’s motion for summary judgment on the issue of liability, dismissed the complaint made against the defendants, and granted portions of the cross motion of the defendants for summary judgment dismissing the complaint as it was alleged that the defendants committed legal malpractice by failing to interpose a claim in an underlying action of rescission based on a mistake.

Case Background
The plaintiff is a home builder and in 1999 he started negotiations for the purchase of a home that he was building. For the negotiations he retained the defendants to represent him. In January of 2000, the plaintiff was ready to sign a contract of sale as well as a separate basement construction agreement. This contract had been forwarded to the defendant’s offices. The plaintiff executed the basement construction agreement, but then discovered that the buyers had not signed the attached contract of sale. This contract included additional terms that were not previously agreed to in the parties’ negotiations. As a consequence the plaintiff did not sign the contract of sale and told the defendant’s that the deal with the buyers was off and to proceed accordingly.

The defendants received a copy of the contract of sale from the buyers, but at this point the plaintiff was no longer interested in proceeding. In March of 2000, the defendants sent a package of documents that included the signed basement construction agreement and the contract of sale signed by the buyers, but not signed by the plaintiff.

The buyers then started an action against the plaintiff and defendants for performance of the contract of sale. The plaintiff retained a new law firm to represent him in that underlying action. The other law firm successfully moved to dismiss the complaint in the underlying action. However, this motion was reversed on appeal and specific performance was awarded to the buyers.

While the underlying action was still pending the plaintiff started this legal malpractice suit against the defendants. The legal malpractice case was dismissed as premature, but the plaintiff was given leave to start a second action should the buyers be awarded damages in the underlying action. The plaintiff is now seeking to recover damages from the defendants.

Court Decision
The court is granting the application to leave for appeal for the portion of the order that directed the dismissal of the complaint against the defendants. The original order from the Supreme Court of Westchester County is modified by deleting the portion of the order that denied the motion by the plaintiff for summary judgment on the issue of liability against the defendants and substituting a provision that grants that branch of the motion. A bill of costs is awarded to the plaintiff and will be paid by the defendants.
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The defendant in this case is appealing an order that was made by the Supreme Court of Nassau County. The order directed the defendant to comply with a request for information prior to a hearing for medical malpractice.

Case Background
The plaintiff in the case alleges that she was a patient at the Westchester defendant hospital that had been notified by her personal physician that she was unable to go to the bathroom without help. She states that a nurse that worked at the hospital allowed her to go to the bathroom without help in order to provide a urine specimen. While the plaintiff was walking to the bathroom she fell down and suffered from serious injuries which included a broken hip.

Case for Appeal
The only issue that is raised on appeal in this court is whether or not the defendant has to be present at a hearing before a medical malpractice panel. The alleged malpractice suit is against a nurse that is employed by the defendant hospital.

Case Discussion
Until recently the law stated that a nurse could not be liable for a medical malpractice act. However, the new trend is that a medical malpractice panel be required when a hospital is named as a defendant, such as in this case. The recent cases have found that this type of panel must be conducted even if the malpractice case is alleged against a nurse or an emergency room attendant. For this reason, it is now assumed that a nurse can commit malpractice.
In this case, it is not alleged that the nurse did an act that is related to a medical diagnosis or that is within the expertise of a malpractice panel, she simply failed to follow an order from a physician.

Court Decision
After reviewing the facts of the case, it is determined that a nurse can commit medical malpractice and the alleged claims in this case set for a colorable claim. For this reason, the defendant hospital must appear before the medical malpractice panel. The original ruling of the Supreme Court of Nassau County is affirmed and the appeal by the defendant is denied.
Three of the four judges hearing this case concur with the decision and one justice dissents, voting to have the order reversed and holds that the defendant is not required to appear before the medical malpractice panel.

The dissenting judge states that while a nurse can be referred to a medical malpractice panel it is his opinion that the bill of particulars and pleadings must reveal that the plaintiff is making a claim that the nurse was performing specific duties that call for special training and talents. In this case the nurse simply handed the plaintiff a cup and asked for a urine specimen and then left the room, leaving the plaintiff to go to the bathroom without assistance. This is not a malpractice case, but one of simple negligence and should be carried forward as such.
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The case before the Westchester court is an action for a declaratory judgment that the defendant insurance company is obligated to defend and indemnify the plaintiff under a lawyers professional liability insurance policy. The plaintiff is an attorney whose practice is concentrated mainly in criminal defense.

Case Background
The plaintiff attorney was retained to represent a defendant that had been indicted by the Nassau County Grand Jury and charged with various counts of sodomy in the first degree as well as several other forcible sexual conduct crimes with his daughter. The alleged acts were said to occur between March of 1995 and December of 1998. The victim was between 10 and 13 years old at the time the acts took place. The defendant was indicted in New York County for similar activity as well.

The defendant charged with the sexual misconduct is a non-practicing attorney. He went against the advice of the plaintiff attorney and waived his right to a jury on the indictment from the Nassau County court.

During the trial before the judge the victim daughter gave detailed testimony regarding the sexual abuse by her father. A physician testified during the trial as to the examination of the victim’s genital area. The doctorused a colposcopy in order to magnify the genital area and prepare photographic slides. The doctor testified that it was her opinion that the complainant had suffered from penetrating trauma to her anus and vagina.

A child psychiatrist also testified during the trial about child sexual abuse accommodation syndrome. The psychologist stated that it is common for abused children to not disclose the information until they are an adolescent. This testimony was to help explain why the victim had waited to report the abuse for so long.

The defense of the father was that the complainant had engaged in sexual activity with a boyfriend of her own age rather than vaginal and anal intercourse with her father.

The defendant was convicted on all charges by the judge in Nassau County. He appealed the conviction on the ground of ineffective counsel. The appellate court confirmed the convictions.
The defendant appealed the decision again and the appeal was granted on the basis of ineffective counsel. The judge found that by not calling a medical witness on behalf of the defendant resulted in prejudice of the defendant. As a result of this finding the defendant was released from prison and started a legal malpractice suit.

Current Case
The plaintiff in this case is the defendant in the legal malpractice suit. The insurance policy in question has a notice of potential claim provision and the company states that the plaintiff failed to provide them with adequate notice of the potential claim against him.

The defendant insurance company is seeking summary judgment in regard to being obligated to defend or indemnify the plaintiff in the malpractice action. The plaintiff has cross moved for a summary judgment stating that the insurance company is required to defend and indemnify him in the malpractice action.

Court Discussion and Decision
The court has reviewed the facts of the case and finds that the plaintiff failed to provide the company with adequate notice of the potential case against him. For this reason, the court grants summary judgment in favor of the insurance company and they are not required to represent the plaintiff in the legal malpractice case.
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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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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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In this case the plaintiffs are seeking to recover damages for medical malpractice. The plaintiffs allege that the defendants cared for the plaintiff while she was pregnant and that one of the twins died in utero as a result this care.

Case Background
The plaintiffs of the case are seeking to recover damages for alleged malpractice by the defendants. The plaintiffs allege that the defendants cared for the plaintiff while she was pregnant and that one of her twins died in utero as a result of this care. The plaintiff states that she sustained personal injuries, emotional distress, and pecuniary loss.

The Manhattan plaintiffs allege that she came under the care of the midwife in January of 2004. The plaintiffs allege that the other two defendants were employees of the midwife. During her labor and delivery the wife was attended to by one of the employees of the midwife. The plaintiffs allege that the defendant was careless and negligent and departed from good and acceptable standards of medical practice by failing to properly monitor and follow up with the care and treatment of the plaintiff. The plaintiffs further allege that the defendants did not assist in the care and treatment of her and failed to take the necessary precautions in order to prevent damage and injury to the plaintiff and her twins.

The Westchester defendants seek summary judgment in the case to have the complaints against them dismissed. The defendant doctors argue that they cannot be held liable in this matter because the plaintiff had hired a midwife for the delivery of the twins. When a midwife is hired the doctors take a background role and are only there to offer advice and for this reason they cannot be held liable for the incident at hand.

Court Discussion and Decision
The court has carefully reviewed the facts of the case including the care that caused the demise of one of the infant twins. The plaintiff has provided expert affirmation in the case, but has failed to show the existence of material issues of fact in regard to the care and treatment of the plaintiff by the defendant doctors. The plaintiffs have also not established an existence of material issues in regard to the care provided at the defendant hospital.

For this reason, the court is granting the motions from the defendant doctors and the hospital. The complaints made against them are dismissed.

In regard to the case against the midwife, the court finds that there are triable issues of fact in regard to the case. The motion made by the midwife defendant for summary judgment to dismiss the complaint against her is denied. The ruling in this regard is in favor of the plaintiff.
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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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On April 6, 2007, the New York State Emergency Medical Services (EMS) responded to a call just before ten at night to an apartment on Colonial Road in Brooklyn. The call was related to a twenty-five year old woman bleeding vaginally. Upon their arrival, the EMS team noticed that there was blood in the shower area and that the young woman who was seated on the commode was bleeding from her vagina. She was cold and clammy and was transported immediately. The EMS team asked her if she was pregnant or if she could be pregnant. She stated that she was not. However, upon admittance into the hospital at Lutheran Medical Center, the doctors discovered that it was clear that she had recently given birth to a child. The woman refused to admit that she had delivered a baby.

The Long Island hospital personnel contacted the police department to locate the baby. The police officers returned to the apartment and questioned the sister of the woman who was in the hospital. They told her that the hospital had said that there was a baby and that they needed to check on the welfare of the child. They repeatedly asked the sister where the baby was. She denied that there was a baby, but finally told them that there were several garbage bags outside in the cold night air behind the apartment. When the officers examined the contents of the garbage bags, they discovered the body of a newborn infant girl in the trash. She was still alive, but showing no signs of life other than being pink in color. She was intubated and transferred to the hospital for emergency medical care. The infant died shortly after arrival. Her cause of death was from exposure to the cold and hypoxia brought on by being tied up in a garbage bag.

The young woman was charged with homicide in causing the death of her newborn infant. The defense attorney filed a motion to suppress the evidence that was collected by the police officers because they contend that it should be excluded from the case under the exclusionary rule. Their contention was based on the idea that the police officers had responded to the location without a warrant and had located the infant based on confidential medical information that was illegally obtained.

The state maintains that the Westchester doctors were well within the law when they contacted the police department with the information that the mother was admitted to the hospital after having just given birth to a child that was missing. It is a statutory requirement that any child that is endangered by reported to the police immediately. The facts of the situation made it obvious that the child was endangered. When any woman is admitted into a hospital denying that she has given birth, when the evidence is clear that she has, must cause concern. The fact that she would not reveal the location of the infant would lead a reasonable person to believe that the infant is most likely endangered, especially, given the temperature that night in April. The police were then legally notified that there was a possibly endangered child at the location where the woman had been collected. The police were then legally responsible to go to the location and make reasonable inquiry into the location of the infant. The court maintained that there was no impropriety taken in searching the garbage bags and locating the infant.

Thus, the woman’s defense counsel was denied their request to suppress all of the evidence that was located following the disclosure to the police by the doctors that she had recently given birth. The court determined that all evidence was legally obtained and was therefore fully admissible in a court of law.
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On 19 October 1970, a doctor performed a surgical excision of a node from plaintiff’s neck. Allegedly, during the operation on plaintiff’s neck, the surgeon negligently injured a spinal-accessory nerve in her neck and also injured branches of her cervical plexus. Following the operation, plaintiff told her surgeon that she was experiencing numbness in the right side of her face and neck and that it was difficult and painful for her to raise her right arm. The physician was allegedly aware of the negligent manner in which he had performed the surgery and, as a result, plaintiff suffered a potentially permanent personal injury; that the physician willfully, falsely and fraudulently told plaintiff that her post-operative problems, pain and difficulties were transient and that they would disappear if she would continue a regimen of physiotherapy which he had prescribed and which was then being given by another doctor. Consequently, plaintiff continued with the physiotherapy prescribed by the subject doctor until October 1974. Meanwhile, she had moved to Syracuse, New York, where she sought further medical advice. In January 1974, she was first apprised by the Syracuse physician of the true nature of her injury and that it probably had been caused at the time of her surgery. This doctor’s diagnosis was substantially confirmed in October 1974 by a professor of medicine, specializing in neurology, at Upstate Medical Center in Syracuse, who also advised that reanastomosis of the sectioned nerve four years after the surgery would not be a physiologically successful procedure. Allegedly, the doctor who performed the surgery on plaintiff had intentionally withheld information as to the true nature and source of her injury, thus, she was deprived of the opportunity for a cure of her condition.

Sometime in April 1976, the present personal injury action against the surgical doctor was commenced. Prior to service of an answer, the doctor moved to dismiss the complaint under CPLR 3211 on the ground that the cause or causes of action alleged were barred by the Statute of Limitations. Plaintiff then cross-moved for leave to amend her complaint to include a cause of action for malpractice.

The Supreme Court in Westchester denied defendant’s motion to dismiss and granted the plaintiff leave to amend her complaint, as requested. On appeal, the Appellate Division reversed, granted defendant’s motion and dismissed the complaint. Plaintiff thereupon appealed the said decision.

The Ruling:

Here, the court finds that the complaint by the patient against her treating physician sets forth a cause of action based on intentional fraud as well as a cause of action in negligence for medical malpractice. Further, by reason of the physician’s alleged subsequent intentional concealment of the malpractice and misrepresentation as to its cure, the time within which the action in negligence could be brought was not limited to the then applicable three-year statutory period of limitations and that, on the present motion to dismiss the complaint, it cannot be said that the action was not commenced within a reasonable time after discovery of the malpractice. Moreover, the Statute of Limitations applicable to the claim for damages based on the intentional fraud is the six-year statute. Different measures of damages are applicable to the two causes of action.

Clearly, the complaint sufficiently sets forth two causes of action, although not explicitly or separately denominated, one in negligence for medical malpractice on the part of the surgical doctor in connection with the surgical excision of the node and the other for an intentional tort in knowingly and fraudulently misinforming plaintiff as to her physical condition and misrepresenting that physiotherapy would produce a cure.

The complaint sufficiently sets forth a cause of action for medical malpractice; the critical issue is whether such cause of action was barred by the then applicable three-year Statute of Limitations. Normally the statute would have precluded institution in April 1976 of a claim for damages for malpractice alleged to have occurred in October 1970. Nonetheless, this complaint further alleges that defendant intentionally concealed the alleged malpractice from plaintiff and falsely assured her of effective treatment, as a result of which plaintiff did not discover the injury to the nerve until October 1974. In this case, principles of equitable estoppel are applicable to relieve plaintiff from the proscriptions of the statute. It has been ruled that fraudulent representations may play a dual role. They may be the basis for an independent action for fraud and they may also, in equity, be a basis for an equitable estoppel barring the defendants from invoking the statute of limitations as against a cause of action for breach of fiduciary relations.

In the instant case, the elements of reliance by plaintiff on the alleged misrepresentations as the cause of her failure sooner to institute the action for malpractice and of justification for such reliance, both necessarily to be established by her, are sufficiently pleaded within the fair intendment of the allegations of this complaint. In passing, the court observes that, if it is established that plaintiff is not precluded from prosecuting the cause of action in negligence and she proves that cause on the merits, the measure of damages which she will be entitled to recover will be that normally associated with medical malpractice actions in situations such as the present.

The issue now is the claim of fraud as an intentional tort. The essential elements, here alleged or within the reasonable intendment of the complaint, are knowledge on the part of the physician of the fact of his malpractice and of his patient’s injury in consequence thereof, coupled with a subsequent intentional, material misrepresentation by him to his patient known by him to be false at the time it was made, and on which the patient relied to his damage in this case, defendant’s intentionally concealing from his patient the fact of the malpractice and thereafter fraudulently misstating that the therapy prescribed would effect a cure. This is more than another aspect of the malpractice or even another act of alleged negligent malpractice on the part of the treating physician; the complaint alleges an intentional fraud that the surgical doctor, knowing it to be untrue yet expecting his patient to rely on his advice, advised her that physiotherapy would produce a cure, in consequence of which fraudulent misrepresentation the patient was deprived of the opportunity for cure of the condition initially caused by the doctor’s alleged malpractice. If these allegations are proved they will establish an intentional tort, separate from and subsequent to the malpractice claim. Recovery of damages in such case is governed by the six-year Statute of Limitations under CPLR 213. The application of the three-year Statute of Limitations is not mandated by the circumstance that the fraud alleged arises as a sequel to an alleged malpractice.

Thus, in the case at bar, if it can be shown that at the time of the surgical doctor’s alleged fraudulent misrepresentations it was already too late to undertake a reanastomosis of the severed nerve, this plaintiff will have sustained little or no damages in consequence of the alleged fraud. If only a partial cure were then possible, damages would be assessable on that basis. Recovery would be greatest if plaintiff were diverted from what could otherwise have been a complete cure.
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