| Bevinetto v Steven Plotnick, M.D., P.C. |
| 2008 NY Slip Op 04302 [51 AD3d 612] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Alessandra Bevinetto, Respondent, v Steven Plotnick,M.D., P.C., et al., Appellants. |
—[*1] Jeffrey S. Lisabeth, Mineola, N.Y., for respondent.
In an action to recover damages for medical malpractice, wrongful death, and lack ofinformed consent, the defendants appeal from an order of the Supreme Court, Nassau County(Brandveen, J.), dated March 26, 2007, which denied their motion pursuant to CPLR 3216 todismiss the complaint for failure to prosecute or, alternatively, for summary judgment dismissingthe first and third causes of action as time-barred.
Ordered that the appeal from so much of the order as denied that branch of the motion whichwas pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute is dismissed asacademic in light of our determination; and it is further,
Ordered that the order is reversed insofar as reviewed, on the law, with costs, that branch ofthe motion which was for summary judgment is granted, and the complaint is dismissed in itsentirety.
The defendant Steven Plotnick (hereinafter the defendant) rendered medical treatment to theplaintiff's decedent from January 26, 1993 through May 25, 1993. On April 28, 1993 thedefendant performed a surgical procedure on the decedent at Winthrop University Hospital, atwhich time the decedent signed a consent form evidencing her consent to several surgicalprocedures, including, inter alia, a bilateral oophorectomy. It is undisputed that the defendant lasttreated the plaintiff's decedent on May 25, 1993 when she presented for a post-surgical consult.[*2]
During the subsequent four-year period, the decedent wasunder the care of two other gynecologists. In August 1997 the decedent was admitted to MercyMedical Center (hereinafter Mercy) with abdominal pain. A CT scan revealed a large ovarianmass. Mercy referred the decedent to Memorial Sloan-Kettering Cancer Center (hereinafterMSKCC). Upon her release from Mercy, the decedent, who thought that the defendant hadremoved both her ovaries in 1993, ordered a copy of her medical records from him. Thoserecords included an operative report indicating that when the defendant performed theoophorectomy, a small portion of the decedent's right ovary that was adherent to the right pelvicsidewall was not removed.
The decedent was diagnosed with ovarian cancer and on September 2, 1997 she underwentsurgery at MSKCC. The decedent died on January 25, 2002.
On December 9, 2003 the plaintiff commenced this action on behalf of the decedent's estatealleging medical malpractice, wrongful death, and lack of informed consent. The defendantsmoved, inter alia, for summary judgment dismissing the first and third causes of action to recoverdamages for medical malpractice and lack of informed consent, respectively, as time-barred. Insupport of that branch of the motion, the defendants demonstrated that the action wascommenced well after the 2½-year limitations period had run (see CPLR 214-a;see generally Scott v Uljanov, 74 NY2d 673, 674 [1989]; Lippert v Yambo, 267AD2d 433, 434 [1999]; Hazel v Montefiore Med. Ctr., 243 AD2d 344, 344-345 [1997];Spinosa v Weinstein, 168 AD2d 32, 41 [1991]; Hodaba v Lippert, 64 AD2d 691[1978]). The plaintiff contends that she is entitled to the benefit of an estoppel preventing thedefendants from relying on the applicable statute of limitations (see CPLR 214-a) toobtain the dismissal of the first and third causes of action. The plaintiff further contends that thedefendant fraudulently concealed from the decedent the fact that he had not fully removed bothher ovaries, thereby placing her at risk of developing ovarian cancer.
The plaintiff failed to make the requisite showing that she brought the action "within areasonable time after the facts giving rise to the estoppel . . . ceased to beoperational" (Simcuski v Saeli, 44 NY2d 442, 450 [1978]). The statute of limitationsbegan to run when she became aware of the fact that the defendant, during the 1993 surgicalprocedure, did not fully remove both ovaries. Nonetheless, the plaintiff waited more than sixyears thereafter before commencing this action.
Equitable estoppel will "bar the assertion of the affirmative defense of the Statute ofLimitations where it is the defendant's affirmative wrongdoing . . . whichproduced the long delay between the accrual of the cause of action and the institution of thelegal proceeding " (Zumpano vQuinn, 6 NY3d 666, 673 [2006] [internal quotation marks and citations omitted;emphasis added]). Here, given the decedent's awareness of her condition and the basis for thisaction within the applicable limitations period, the subsequent inaction in timely commencing thelawsuit precludes the equitable estoppel claim (see Putter v North Shore Univ. Hosp., 7 NY3d 548 [2006]; Roswick v Mount Sinai Med. Ctr., 22AD3d 409 [2005]; Julian v Carroll, 270 AD2d 457 [2000]; Campbell vChabot, 189 AD2d 746 [1993]).
Moreover, the plaintiff's submissions negated, as a matter of law, "an essential element ofequitable estoppel, i.e., justifiable reliance upon the [defendant's] intentional misrepresentationswhich prevented her from discovering the malpractice or induced her to refrain from bringingsuit" (McIvor v Di Benedetto, 121 AD2d 519, 523 [1986]; see Simcuski v Saeli,44 NY2d 442, 449 [1978]). Contrary to the plaintiff's contention, there was no basis to forestallthe commencement of this action pending the completion of an investigation of the defendant bythe New York State Department of Health, State Board for Professional Misconduct, whichbegan in or about November 2002, involving, inter [*3]alia, theallegations made by the decedent regarding the defendant's alleged misconduct.
In addition, contrary to the plaintiff's contention, the issue of whether the second cause ofaction to recover damages for wrongful death should be dismissed is properly before us (see Matter of Besedina v New York CityTr. Auth., 47 AD3d 924 [2008]; Glasheen v Long Is. Diagnostic Imaging, 303AD2d 365 [2003]; Block v Magee, 146 AD2d 730, 732-733 [1989]; Matter ofKnickerbocker Field Club v Site Selection Bd. of City of N.Y., 41 AD2d 539, 540 [1973]).Although the action was commenced within the two-year limitations period provided for awrongful death cause of action, which runs from the death of a decedent (see EPTL5-4.1; Burwell v Yonkers Gen.Hosp., 6 AD3d 478, 480 [2004]), that cause of action also should have been dismissed.Where as here, the statute of limitations on the underlying medical malpractice action had runduring the decedent's lifetime, the wrongful death claim must be dismissed (see Helgans vPlurad, 255 AD2d 554, 557 [1998]; see also Prink v Rockefeller Ctr., 48 NY2d 309,315-316 [1979]).
The parties' remaining contentions regarding that branch of the defendants' motion whichwas to dismiss the complaint pursuant to CPLR 3216 have been rendered academic in light ofour determination. Skelos, J.P., Lifson, Santucci and Balkin, JJ., concur.