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).”