Opinion
30453/09.
Decided February 24, 2011.
Law Office of Therese A. Tomlinson, Jamaica, New York, Attorney for Plaintiff.
Kaufman, Borgeest Ryan, LLP, Garden City, New York, Attorneys for defendant Kingsbrook Jewish Medical Center.
Costello, Shea Gaffney, LLP, New York, New York, Attorneys for Defendant Alford A. Smith, M.D.]
Salvatore J. Russo, New York, New York, Attorneys for New York City Health and Hospitals Corporation.
The following papers numbered 1 to 12 read on these motions: Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1-2, 3-4, 5-6
Opposing Affidavits (Affirmations) 7, 8, 9
Reply Affidavits (Affirmations) 10, 11, 12
Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, defendants New York City Health and Hospitals Corporation s/h/a Kings County Hospital Center and New York City Health and Hospital Corporation move for an order, amending the caption to reflect plaintiff's recent appointment as administrator and, upon such amendment, for an order, pursuant to CPLR 3211(a)(5) and (7), dismissing plaintiff's complaint as against the defendants. Defendant Alford A. Smith, M.D., moves for an order, pursuant to CPLR 3211(a)(3), (5) and (7), seeking to dismiss plaintiff's complaint insofar as asserted against him. Defendant Kingsbrook Jewish Medical Center also moves for an order, pursuant to CPLR 3211(a)(3) and (5), seeking to dismiss plaintiff's complaint insofar as asserted against it.
Factual Background
The plaintiff Terence Butler (plaintiff), individually, and denominated as a "proposed administrator" of the Estate of Viola Butler, commenced the within action to recover damages for medical malpractice and wrongful death against the defendants New York City Health and Hospitals Corporation s/h/a Kings County Hospital Center and New York City Health and Hospital Corporation (hereinafter, HHC), Kingsbrook Jewish Medical Center (Kingsbrook) and Dr. Alford A. Smith (Dr. Smith), alleging negligent medical care rendered to his mother, the decedent Viola Butler, (hereinafter, the decedent) up until the time of her death on September 3, 2008. The decedent was an inpatient at Kingsbrook at the time of her death. At some point, prior to her death, the decedent was treated at Kings County Hospital Center, which is a facility operated by HHC.
Plaintiff subsequently served a notice of claim upon HHC on October 2, 2008, alleging wrongful death and conscious pain and suffering by reason of the medical malpractice and negligence of HHC, through its employees at Kings County Hospital (KCH). In the notice of claim, the plaintiff alleges that, on or before July 8, 2006, while the decedent was a patient at KCH, the medical personnel failed to diagnose the decedent with lung cancer, which resulted in her death on September 3, 2008. The decedent was subsequently diagnosed with lung cancer in August 2008.
On or about December 1, 2009, plaintiff commenced the instant action for damages arising from the personal injuries and wrongful death of his mother allegedly as a result of the negligent medical treatment she received at the hands of the defendants. Since he had not yet been issued Letters of Administration authorizing him to bring suit on behalf of the decedent's estate at the time the action was commenced, plaintiff denominated himself the "proposed administrator (next of kin /only child/son) of the Estate of Viola Butler" in the caption of the action. Letters of Administration were ultimately issued to the plaintiff on June 7, 2010.
Discussion
HHC's Motion to Dismiss
HHC now moves for an order pursuant to CPLR 3211(a)(5) and (7), dismissing the complaint on the grounds that it is barred by the statute of limitations and/or fails to state a cause of action. In support of its motion, HHC asserts that the medical malpractice cause of action must be dismissed on the ground that the plaintiff failed to serve a timely notice of claim. HHC maintains that any alleged failure to diagnose decedent's lung cancer occurred more than 90 days prior to the filing of plaintiff's notice of claim and, thus, the notice of claim is untimely, under General Municipal Law § 50-e. In this regard, HHC contends that October 16, 2006 is the last date that the decedent received any treatment from KCH and, therefore, plaintiff's notice of claim, which was filed on or about October 2, 2008, was untimely with respect to said claim.
In support of this contention, HHC has submitted an affidavit from Annette Griffith, a KCH Associate Director of Medical Records, wherein she avers that a search of KCH's patient records revealed that the decedent presented to KCH on October 13, 2006 and was later discharged from the hospital three days later, on October 16, 2006. Based upon her search of the patient database, Ms. Griffith claims that she did not find any records indicating that the decedent came back to KCH, or one of its clinics, for treatment between October 16, 2006 and September 3, 2008, the date she died. HHC also refers to plaintiff's 50-h hearing testimony wherein he stated that the decedent last received medical care at KCH in November 2006.
In opposition, the plaintiff asserts that the medical malpractice claim is timely and asserts, in a conclusory fashion, that the continuous treatment doctrine should be invoked against HHC.
Late Notice of Claim
Actions against HHC are governed by McKinney's Unconsolidated Laws of NY § 7401(2) which, in relevant part, provides that such action may not be commenced "unless a notice of intention to commence such action and of the time when and the place where the tort occurred and the injuries or damage, were sustained [. . .] shall have been filed with a director or officer of the corporation within ninety days after such cause of action shall have accrued." Pursuant to General Municipal Law (GML) § 50-e, the timely filing of a notice of claim is a statutory precondition to the initiation of personal injury suits against a municipality. GML § 50-e (1)(a) provides: In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action against a public corporation, as defined in the general construction law, or any officer, appointee or employee thereof, the notice of claim shall comply and be served with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate (emphasis added).
Thus, a party has 90 days from the date the claim arises to file a notice of claim and when a notice of claim is served beyond the required ninety-day period, without leave of court, it is deemed a nullity ( see McShane v Town of Hempstead, 66 AD3d 652 ; Small v New York City Tr. Auth., 14 AD3d 690 ; Mack v City of New York, 265 AD2d 308; Kokkinos v Dormitory Auth. of New York, 238 AD2d 550).
CPLR § 214-a sets forth that "an action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." Generally, a medical malpractice action accrues on the date of the alleged wrongful act ( see Plummer v New York City Health and Hospitals Corporation, 98 NY2d 263, citing Nykorchuck v Henriques, 78 NY2d 255, 258-259). However, where there is a continuous course of treatment for the conditions giving rise to this malpractice action, the running of the applicable statutory period is tolled during the period of continuous treatment ( see Young v New York City Health Hosps. Corp., 91 NY2d 291; Langsam v Terraciano , 22 AD3d 414 . Additionally, the doctrine of continuous treatment will also toll the 90-day period within which a notice of claim must be filed under General Municipal Law § 50-e ( see Plummer v New York City Health and Hospitals Corporation, supra, citing Davis v City of New York, 38 NY2d 257, 259; Borgia v City of New York, 12 NY2d 151).
Here, the court finds that the malpractice claim against HHC accrued in November 2006, at the latest, which is the date the plaintiff claims the decedent last received treatment from KCH. Plaintiff, therefore, was required to serve a notice of claim based upon the pain and suffering allegation by February 2007. Instead, plaintiff served his notice of claim on October 2, 2008, almost two years after the claim accrued, and never moved for permission to serve a late notice of claim. Additionally, the court rejects plaintiff's contention that, under the continuous treatment doctrine, his notice of claim was timely filed. The plaintiff failed to proffer any evidence that the decedent received any treatment from KCH after October 16, 2006. Consequently, since the plaintiff failed to serve a notice of claim upon HHC within the requisite 90-day period ( see General Municipal Law § 50-e[a]), the medical malpractice cause of action as against HHC is hereby dismissed.
Motions to Dismiss by Dr. Smith and Kingsbrook
Dr. Smith and Kingsbrook, separately, move to dismiss plaintiff's medical malpractice and wrongful death causes of action on the grounds that the plaintiff, as a proposed administrator, lacked the capacity to sue on behalf of the decedent (CPLR 3211[a][3]) and the medical malpractice and wrongful death claims are barred by the applicable statute of limitations (CPLR 3211[a][5]).
CPLR 3211(a)(3) provides as follows: "(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: 3. the party asserting the cause of action has not legal capacity to sue"
Wrongful Death Claim
Dr. Smith and Kingsbrook (collectively, the defendants) argue that the plaintiff lacks the capacity to commence the within action because he was not designated as the legal representative of the decedent's estate at the time the action was commenced. Plaintiff initially commenced the action as a "proposed administrator" of the decedent's estate. Letters of Administration were not issued to the plaintiff until June 7, 2010.
In opposition, the plaintiff points out that the Letters of Administration have since been issued to him (on June 7, 2010), and further contends that none of the defendants have been prejudiced by his commencement of the action prior to being named the administrator of the decedent's estate. Plaintiff additionally notes that he is the only person who could assert this action on the decedent's behalf because he is her sole heir.
Additionally, since the wrongful death action was commenced on December 1, 2009, approximately one year and three months after the decedent's death on September 3, 2008, plaintiff asserts that the wrongful death claim, which has a two year statute of limitations, was timely commenced.
Pursuant to the New York wrongful death statute, only 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." (NY Est. Powers Trusts L. ["EPTL"] § 5-4.1[1]). A "personal representative" is "a person who has received letters to administer the estate of a decedent"( see EPTL § 1-2.13; see also Mingone v State, 100 AD2d 897["personal representative who has received letters of administration of the estate of a decedent is the only party who is authorized to bring a . . . wrongful death action"]). EPTL § 5-4.1 further provides that the wrongful death action must be commenced within two years after the decedent's death, and in the event that an executor, appointed under a will, refuses to bring such a claim, ". . . the distributees are entitled to have an administrator appointed to prosecute the action for their benefit." It is well established that the existence of a qualified administrator is essential to the maintenance of the action and that the statutory right to recover for wrongful death does not even arise until an administrator has been named through the issuance of letters of administration ( see Carrick v Central General Hospital, 51 NY2d 242, 250). In Carrick, the Court of Appeals emphasized that the existence of a qualified administrator is not only an essential element to the statutory right to recover for a wrongful death, but also is a condition precedent to bringing such a claim ( see Mingone v State, 100 AD2d 897 [affirming dismissal of wrongful death action where a plaintiff received letters of administration after serving a summons on defendants but before serving a complaint because "the action was not commenced by the personal representative"]; In re Seventh Judicial Dist. Asbestos Litigation, 4 Misc 3d 457). Thus, a "proposed administrator" lacks the capacity to bring a wrongful death action ( see Carrick, 51 NY2d at 247).
EPTL § 5-4.1 provides in pertinent part as follows:
"Action by personal representative for wrongful act, neglect or default causing death of decedent
1. 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."
In the present case, it is undisputed that the plaintiff was not in possession of Letters of Administration for the decedent's estate at the time the action was commenced. Thus, the plaintiff was not the personal representative of his mother's estate at the time he filed the wrongful death claims against defendants. The plaintiff, therefore, lacked the capacity to bring, and lacked a condition precedent to bringing, the wrongful death claim. The fact that the plaintiff received Letters of Administration for his mother's estate subsequent to commencing the wrongful death action does not, by itself, cure the defect. Accordingly, the wrongful death claims as against all of the defendants (Kingsbrook, Dr. Smith and HHC) are hereby dismissed ( see McGuire v Southside Hospital, 301 AD2d 505; see also Carrick, 51 NY2d at 250).
Medical Malpractice Claims
Kingsbrook an Dr. Smith also move, pursuant to CPLR 3211(a)(5), to dismiss plaintiff's medical malpractice claims insofar as asserted against them as time barred. As to Kingsbrook, it contends that the plaintiff's complaint contains allegations for medical treatment it rendered to the decedent on or about March 20, 2003, which was more than 2 ½ years prior to the commencement of the action and, therefore, barred by the statute of limitations set forth in CPLR 214-a.
With respect to Dr. Smith, the complaint alleges that he and/or his agents, servants and/or employees, rendered medical services to the decedent on or about March 4, 2004 and "prior and subsequent thereto." In support of his motion, Dr. Smith argues that plaintiff's allegations of medical malpractice are too vague and fail to cite any specific treatment dates before or beyond March 4, 2004. Additionally, Dr. Smith argues that, even if the plaintiff was claiming that medical malpractice stemmed from treatment the decedent received on March 4, 2004, that claim does not fall within the applicable 2 ½ year statute of limitations period.
In opposition, the plaintiff maintains that his medical malpractice claims are not time-barred as to either Kingsbrook or Dr. Smith. As to Kingsbrook, plaintiff notes that the complaint alleges that Kingsbrook rendered treatment to the decedent on or about March 20, 2003, and " subsequent thereto" (emphasis applied). Thus, it is plaintiff's contention that the March 20, 2003 date is when treatment of the decedent commenced, not the last date of treatment. Plaintiff further asserts that the complaint includes allegations of continuous treatment by Kingsbrook, up until her death on September 3, 2008. In this regard, plaintiff maintains that the decedent was treated at Kingsbrook numerous times prior to and at the time of her death on September 3, 2008, which occurred while she was an inpatient at Kingsbrook and that the statute of limitations was tolled during this continuous treatment. As to Dr. Smith, the plaintiff similarly argues that said defendant treated the decedent after March 4, 2004, and that continuous treatment tolled the statute of limitations.
It is well settled that a defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired ( see LaRocca v DeRicco, 39 AD3d 486 , 486-487; Gravel v Cicola, 297 AD2d 620). The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such an exception applies ( see LaRocca, 39 AD3d at 487; Gravel, 297 AD2d at 621).
Pursuant to CPLR 214-a, "[a]n action alleging medical . . . malpractice must be commenced within two years and six months of the act, omission, or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure." The initial burden is on the defendant to show that the alleged malpractice took place more than two and one half-years beyond the statute of limitations ( see Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403 , 405). When that burden is met, the burden then shifts to the plaintiff to establish the applicability of what is known as the continuous treatment doctrine ( see Massie v Crawford, 78 NY2d 516, 519; Texeria, 43 AD3d at 405). Where the continuous treatment doctrine applies, "the time in which to bring a malpractice action is stayed when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint' "( McDermott v Torre, 56 NY2d 399, 405, quoting Borgia v City of New York, 12 NY2d 151, 155, [1962]; see Young v New York City Health Hosps. Corp., 91 NY2d 291, 296).
Here, the court finds that plaintiff's medical malpractice claims against Kingsbrook and Dr. Smith are time-barred to the extent they are based on alleged acts committed by the defendants prior to March 3, 2006, the period that was more than 2 ½ years prior to the death of the decedent ( see Capece v Nash, 70 AD3d 743 ; CPLR 214-a; Kaufmann v Fulop, 47 AD3d 682 ; Magalios v Nyhlen, 18 AD3d 719 ). In opposition, the plaintiff failed to raise a triable issue of fact as to the "continuous treatment" doctrine ( see generally Gomez v Katz, 61 AD3d 108 ). In order for the continuous treatment doctrine to toll the statute of limitations, the plaintiff had to establish that the defendants rendered an actual course of treatment during the applicable period for the same conditions or complaints underlying the plaintiffs' medical malpractice claims ( see Chambers v Mirkinson, 68 AD3d 702 , 705). The plaintiff failed to make any showing in this regard. Accordingly, the medical malpractice claims as against Kingsbrook and Dr. Smith for acts committed prior to March 3, 2006, are hereby dismissed as time-barred against said defendants.
Conclusion
Based upon the foregoing, the motion by New York City Health and Hospitals Corporation s/h/a Kings County Hospital Center and New York City Health and Hospital Corporation is granted to the extent that plaintiff's complaint is hereby dismissed in its entirety as against said defendant.
The motion by Dr. Smith is granted to the extent that plaintiff's wrongful death claim is dismissed as against him pursuant to CPLR 3211(a)(3), and all claims for medical malpractice that may have occurred prior to March 3, 2006 are hereby dismissed as time-barred as against Dr. Smith pursuant to 3211(a)(5).
The motion by Kingsbrook is granted to the extent that plaintiff's wrongful death claim is dismissed as against said defendant pursuant to CPLR 3211(a)(3), and all claims for medical malpractice that may have occurred prior to March 3, 2006 are hereby dismissed as time-barred as against Kingsbrook pursuant to CPLR 3211(a)(5).
The foregoing constitutes the decision and order of the court.