Vol. Date: 9.26.23 MUST READ
Malpractice Wrongful Death Motion to Dismiss Statute of Limitations Continuous Treatement
Hospital’s motion to dismiss on statute of limitations granted where action was commenced 3.5-years after decedent’s last treatment at the hospital and 3-years after decedent’s death, beyond 2.5-year medical malpractice and 2-year wrongful death statutes of limitations even adding the 90-days left on the statutes of limitations when the COVID tolls went into effect.
Plaintiff knew or reasonably should have known of the alleged malpractice at the time of last treatment under CPLR 214-a(b)(ii) where the diagnosis in the discharge summary was malignant lung tumor. Lastella v St. Joseph
Vol. Date: 7.25.23 MUST READ
Malpractice Wrongful Death Motion to Dismiss Capacity to Sue Estate Statute of Limitations CPLR §205(a) Court of Claims
State’s motion to dismiss Claim filed before claimant was appointed administratrix of decedent’s estate granted for lack of capacity to sue under Court of Claims Act §§ 10(2) and (3) which require the formal appointment of an executor or administrator to bring a Claim. Claimant’s motion to refile the Claim under CPLR §205(a) 6-month extension denied because claimant lacked capacity to file the initial Claim. Court of Claims has no discretion to consider request to file late Claim after the statute of limitations. Francis v State of New York
Vol. Date: 4.11.23 NOTEWORTHY
Malpractice Wrongful Death Motion to Dismiss Statute of Limitations Pain/Suffering Capacity to Sue
Psychiatrists and their employer failed to meet burden of showing action was untimely based on wrongful death statute of limitations where claim was to recover pain/suffering prior to decedent’s suicide which sounds in malpractice, not wrongful death. Case remanded for decision on plaintiff’s capacity to sue at time action was commenced by Summons with Notice. Haddad v Muir
Vol. Date: 4.4.23 NOTEWORTHY
Malpractice Wrongful Death Amend Complaint Statute of Limitations Raised For First Time
Plaintiff’s motion to add doctor who discharged decedent from the hospital in place of “John Doe,” brought 5-years and 7-months after wrongful death statute of limitations and 5-years and 2-months after malpractice statute of limitations, denied where plaintiff did not make diligent efforts under the relation-back doctrine to identify the “Jane Doe” before the expiration of the statutes of limitations.
Request to extend time for service on CPLR §306-b denied where raised for the first time on appeal. Estate of Eric Stengel v Good Samaritan Hosp.
Vol. Date: 12.27.22 MUST READ
Malpractice Wrongful Death Statute of Limitations Continuous Treatement Accepted Practice Causation Appealable Order
Cause of action termed ‘loss of service’ adequately plead the elements of wrongful death action and was timely commenced under EPTL §5-4.1 where the underlying malpractice claim was viable at decedent’s death and the action was commenced exactly 2-years later. Malpractice claims against radiologist and primary care physicians dismissed as beyond the 2.5-year malpractice statute of limitations, but plaintiff’s motion to preclude defendants from relying on Article 16 and primary care physicians’ motion for summary judgment remanded where lower court deemed these issues academic.
Appeal from grant of hematologist/oncologist’s unopposed motion to dismiss on statute of limitations dismissed as no appeal lies from a judgment or order granted on default. Proano v Gutman
Vol. Date: 9.27.22 MUST READ
Malpractice Amend Complaint Wrongful Death Estate Reasonable Excuse Prejudice Meritorious Action Statute of Limitations
Motion to lift stay from death of plaintiff, substitute executor, and amend Complaint to include wrongful death claim denied as 3-year delay in seeking letters testamentary was unreasonable under CPLR §1021, affirmation of counsel without personal knowledge, proposed amended Complaint, and Certificate of Merit failed to show a meritorious wrongful death cause of action, and plaintiff failed to show lack of prejudice to defendants. Wrongful death claim was barred by 2-year statute of limitations under EPTL §5-4.1 which was not tolled during application for letters. Byner v Murray-Taylor
Vol. Date: 3.30.21 MUST READ
Wrongful Death Pain/Suffering Assault Statute of Limitations
Thoroughly reviewing tolling of wrongful death claims and pain/suffering claims for infancy under CPLR §208, the First Department rejected an older ruling making it clear that where there are only minor distributees the 2-year wrongful death statute of limitations under EPTL §5-4.1 is tolled until the earlier of the court appointment of a guardian of the property, not a guardian of the person, issuance of letters of administration, or a distributee attaining majority. It is not tolled if there is at least 1-adult distributee. Existence of a potential guardian or personal representative does not end the tolling period. The Court found the wrongful death action tolled due to infancy and timely commenced but that the personal injury claims for intentional torts, where plaintiff’s decedent was killed in an altercation with defendants’ employee at its gas station, were not tolled as those causes of action belong to the estate, not the distributees. Machado v Gulf Oil, L.P.
Vol. Date: 2.23.21 NOTEWORTHY
Motion to Dismiss Wrongful Death Statute of Limitations Punitive Damages
Defendants’ motion to dismiss all claims on 1-year statute of limitations for intentional torts denied as to negligence claims, even where pleaded as “malicious, willful, reprehensible,” and as to wrongful death claim where pecuniary loss to surviving distributees was alleged in supplemental BP served without leave of court and plaintiff adopted statements as his own. Punitive damages allowable under both negligence and wrongful death in appropriate cases. Claims of violation of PHL articles 29-C and 29-CC dismissed as they provide no private cause of action. Reid v St. Luke’s-Roosevelt Hosp. Ctr.
Vol. Date: 2.9.21 MUST READ
Malpractice Wrongful Death Statute of Limitations Raised For First Time
Pro se plaintiff’s wrongful death claims based on first responders’ delay in arriving and improper treatment of decedent time-barred where suit started beyond 2-year statute of limitations for wrongful death (EPTL §5-4.1) and 2.5-year limit for medical malpractice (CPLR §214-a) as claims involved specialized medical knowledge falling under medical malpractice not ordinary negligence. Arguments raised for first time on motion to renew/reargue not preserved and in any event unavailing as statute of limitations is not tolled during pendency of petition for Letters of Administration, CPLR §210(c) inapplicable as it applies only to “personal property wrongfully taken after the death and before the issuance of letters,” and EPTL §§ 11-3.2(b) and 11-3.3 are not tolling statutes. Xenias v Mount Sinai Health Sys. Inc.
Comment: See companion decision in this volume.
Vol. Date: 9.29.20 MUST READ
Malpractice Motion to Dismiss Pain/Suffering Wrongful Death Notice of Claim Notice of Claim Statute of Limitations Estoppel Prejudice NYC
HHC granted summary judgment on grounds plaintiff did not serve a Notice of Claim on it and service of Notice of Claim on NYC is not service on HHC. Court was without power to grant cross-motion to serve late Notice of Claim, even if time of request was dated to opposition to HHC’s motion and not subsequent cross-motion, as 1-year-90 statute of limitations for pain/suffering from time of malpractice and 2-year statute of limitations after death had both expired. Plaintiff failed to show any misstatements by HHC that resulted in his delaying seeking leave to file a late Notice of Claim necessary for equitable estoppel. Watts v City of New York
Comment: NYC’s motion to dismiss claims for emergency treatment denied where plaintiff sufficiently pleaded the existence of a special relationship. Prehospital care report summaries and computerized automated dispatch report were not documentary evidence. Watts v City of New York.
Vol. Date: 8.18.20 NOTEWORTHY
Wrongful Death Motion to Dismiss Statute of Limitations
Defendant’s motion to dismiss wrongful death action granted on proof action was started more than 2-years after death. No criminal action was commenced as required for an extension of 2-year statute of limitations under EPTL §5-4.1(2). Castro v Rochdale Vil., Inc.
Vol. Date: 7.7.20 MUST READ
Wrongful Death Forum non conveniens Statute of Limitations
Motion to dismiss on forum non conveniens by Port Authority, Port Authority police, and defendant airlines granted where accident occurred in New Jersey, plaintiff’s decedent lived and received medical treatment in New Jersey, plaintiff resided in Georgia, and no known witnesses resided in New York on the conditions that 1) defendants accept service of new Complaint alleging same causes of action in New Jersey, and 2) they wave all defenses to statute of limitations that were not barred under New York law at time action was commenced in New York. Sikinyi v Port Auth. of N.Y. & N.J.
Comment: CPLR §327(a) gives court broad power to condition dismissal “on any conditions that may be just.”
Vol. Date: 11.26.19 NOTEWORTHY
Malpractice Wrongful Death Statute of Limitations
Statute of limitations for medical malpractice case accrued on date guardian was appointed and commencement of action 10-years later was time barred as was wrongful death action where decedent died after expiration of malpractice statute of limitations. Graves v Brookdale Univ. Hosp. & Med. Ctr.
Vol. Date: 10.17.17 NOTEWORTHY
Amend Complaint Wrongful Death Meritorious Action Statute of Limitations
Plaintiff’s motion to amend the complaint to include a wrongful death cause of action based on the decedent’s overuse of pain medication for injuries sustained from falling off a ladder during a renovation project granted as defendant failed to show that the claim was palpably insufficient or devoid of merit. In seeking to amend complaint, a plaintiff does not need to put forth evidence of a meritorious action. The wrongful death claim was not barred by the statute of limitations as it fell under the relation back doctrine. Assevero v Hamilton & Church Props., LLC