Anyone can get it wrong, but it appears that all the litigants and Supreme Court all got this lawschool question of statutes of limitation wrong in Stein v Chiera  2015 NY Slip Op 06234 Decided on July 22, 2015  Appellate Division, Second Department.  The AD Panel gives us a lesson in medical malpractice statutes of limitation and wrongful death statutes of limitation.

“In November 2005, the plaintiff, Tracy Stein, and her now-deceased husband, Allan Stein (hereinafter the decedent), retained the defendants, Randall J. Chiera and Chiera & Associates (hereinafter together Chiera), to commence an action on their behalf to recover damages for medical malpractice based on the failure of various medical professionals to timely diagnose the decedent’s lung cancer. On November 7, 2005, the decedent died, and on the same day, Chiera commenced an action, inter alia, seeking damages for medical malpractice (hereinafter the 2005 action). Chiera failed to serve the defendants in the 2005 action and, eventually, that action was dismissed. In October 2006, the plaintiff retained the third-party defendants, Joseph M. Lichtenstein and the Law Offices of Joseph M. Lichtenstein, P.C. (hereinafter together Lichtenstein), to commence a new action to recover damages for medical malpractice and wrongful death, on behalf of the plaintiff individually and as executor of the decedent’s estate. On October 16, 2006, less than a year after the decedent’s death, Lichtenstein commenced an action on the plaintiff’s behalf (hereinafter the 2006 action). Ultimately, the 2006 action was settled.

Before the 2006 action settled, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice against Chiera. In an amended complaint, she alleged that, as a result of Chiera’s failure to properly serve the defendants in the 2005 action and the consequent dismissal of that action, some of her claims were untimely when she commenced the 2006 action. Specifically, the plaintiff alleged that some of the acts of medical malpractice underlying her wrongful death cause of action had taken place more than 2½ years before she commenced the 2006 action. As a result of Chiera’s alleged legal malpractice in failing to timely serve the defendants in the 2005 action, the plaintiff was forced to accept a settlement in the 2006 action for “a far lower amount” than “the full value of [the] medical malpractice claims.”

After being served with the plaintiff’s complaint, Chiera commenced a third-party action against Lichtenstein for contribution and common-law indemnification. Chiera alleged that Lichtenstein’s deficient representation, not Chiera’s, was the proximate cause of the plaintiff’s acceptance of a settlement for less than the full value of her claims. Lichtenstein moved pursuant to CPLR 3211(a) to dismiss the third-party complaint. Chiera, in turn, moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted Lichtenstein’s motion to dismiss Chiera’s third-party complaint,and a judgment was entered dismissing that third-party complaint. The Supreme Court denied Chiera’s motion to dismiss the complaint. Chiera appeals.”

“Here, the plaintiff’s factual allegations fail to state a cause of action to recover damages for legal malpractice against Chiera. First, any medical malpractice cause of action to recover damages for pain and suffering that was viable on the date that the decedent died was still viable when Lichtenstein commenced the 2006 action less than one year later (see CPLR 210[a]; EPTL 11-3.2[b]; Cancel v Posner, 82 AD3d 575, 575-576; cf. Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612, 616). Second, any wrongful death cause of action against those medical professionals based on the same acts of medical malpractice was also timely when the plaintiff commenced the 2006 action. EPTL 5-4.1 provides a two-year statute of limitations for a wrongful death cause of action: “The personal representative, duly appointed in this state or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death” (EPTL 5-4.1[1]).

Additionally, the statute of limitations for medical malpractice is 2½ years (see CPLR 214-a). Thus, the plaintiff had 2 years from the date of the decedent’s death, November 7, 2005, to assert a wrongful death cause of action for any act of medical malpractice that occurred within 2½ years before the date of the decedent’s death (see Baron v Brown, 101 AD3d 915, 917; Vendittai v St. Catherine of Sienna Med. Ctr., 98 AD3d 1035, 1036). Contrary to the plaintiff’s contention and the Supreme Court’s holding, the 2½-year lookback period ran not from the commencement of the 2006 action in October 2006, but from the date of the decedent’s death, November 7, 2005. In other words, no cause of action alleging wrongful death that would have been timely on November 7, 2005, was untimely in October 2006 (see Baron v Brown, 101 AD3d at 917; Venditti v St. Catherine of Siena Med. Ctr., 98 AD3d at 1036; Capece v Nash, 70 AD3d 743, 745-746; Mikus v Rosell, 62 AD3d 674, 675; Scanzano v Horowitz, 49 AD3d 855, 856-857; Norum v Landau, 22 AD3d 650, 651; Murphy v Jacoby, 250 AD2d 826, 826).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.