Opinion
107548/07.
Decided June 16, 2008.
Joshua A. Schulman, LLC, New York, NY, Attorney for Plaintiff.
Charles E. Kutner, LLP, New York, NY, Attorney for Defendant.
Plaintiff Marjorie Carmelia commenced this action for dental malpractice against defendant Milton Kelmans, DDS on or about May 30, 2007. Upon the completion of discovery, defendant moved for an order pursuant to CPLR § 3211(a)(3) dismissing the action on the ground that plaintiff lacks the capacity to sue. Specifically, defendant contends that, because plaintiff failed to list the claim as an asset in her bankruptcy proceeding, the claim became the property of the bankruptcy trustee. Therefore, defendant claims, only the trustee has the capacity to sue. Plaintiff opposes the motion, asserting that plaintiff retained her right to sue because she did not know, and could not have known, about the claim until some time after the bankruptcy discharge when she ended her treatment with the defendant and began treating with a different dentist.
Background Facts
Plaintiff Carmelia first became a patient of defendant Dr. Kelmans in or about July of 1996. In February of 2000, defendant placed blade implants in plaintiff's anterior maxilla. Follow-up care and related treatment continued through November 3, 2005.
Dissatisfied with Dr. Kelmans' treatment, plaintiff sought the services of another dentist, Alan Rothstein, DDS, beginning around December 1, 2007. Dr. Rothstein purportedly advised plaintiff that Dr. Kelmans' placement of the blade implants and related care and treatment did not meet acceptable standards. Plaintiff then retained counsel and commenced this action in May of 2007.
However, while under the care and treatment of defendant Dr. Kelmans, plaintiff filed for Chapter 7 bankruptcy protection on or about November 18, 2003. Within a few months, on January 15, 2004, plaintiff was granted a discharge in bankruptcy. It is undisputed that plaintiff did not list this medical malpractice claim as an asset in the bankruptcy proceeding.
Discussion
As a general rule, a party who files for bankruptcy must schedule a medical malpractice claim as an asset of the estate, even if no malpractice action has yet been commenced, if the cause of action accrues prior to or during the bankruptcy proceeding. See, Martinez v. Desai, 273 AD2d 447 (2nd Dept 2000). The failure to properly schedule the claim deprives the plaintiff of legal capacity to sue and results in the dismissal of the action. Barranco v. Cabrini Medical Center, 50 AD3d 281 (1st Dep't 2008); Rudin v. Hospital for Joint Diseases , 34 AD3d 376 (1st Dept 2006). However, any such dismissal would be without prejudice to the trustee's right to commence a new action in a representative capacity on behalf of the bankruptcy estate within six months of the dismissal pursuant to CPLR § 205. Pinto v. Ancona, 262 AD2d 472 (2nd Dept 1999). The purpose of the rule is to allow the trustee to determine whether a claim should be abandoned or pursued as part of the bankruptcy for the benefit of creditors. Santori v. Met Life , 11 AD3d 597 , 599 (2nd Dept 2004).
Defendant in his motion cites several of the above cases and others which espouse these propositions of law to persuade the Court to dismiss this action. Defendant argues that the cause of action accrued in 2000 when the implants were placed, years before plaintiff commenced the bankruptcy proceeding, requiring plaintiff to list the claim as an asset of the estate. Counsel points to plaintiff's deposition testimony to contend that plaintiff was aware shortly after the implants had been placed of her dissatisfaction with the treatment and that she intentionally withheld the information from the bankruptcy trustee to the detriment of creditors. (See Aff. in Support at ¶ 18).
Plaintiff not only seeks to distinguish defendant's cases, but also asserts that the rule does not apply when the cause of action accrued after the bankruptcy filing, particularly where, as here, the bankruptcy was under Chapter 7. See, Santori, 11 AD3d at 599; Martinez v. Desai , 273 AD2d 447 (2nd Dept 2000); Cruz v. Montgomery, 5 Misc 3d 1020(A) (Sup. Ct, NY Co 2004). Plaintiff herself provides an affidavit attesting that she had no idea that a malpractice claim existed until she came under the care of Dr. Rothstein, years after the discharge in bankruptcy. Therefore, she disputes any claim that she intentionally withheld information from the trustee to defraud creditors and insists that she has standing to proceed. In response, defendant notes that it is the accrual of the cause of action, rather than plaintiff's knowledge of the claim, which is dispositive.
While the accrual of the cause of action is important, defendant errs in setting that date in February 2000, when defendant placed the blade implants in plaintiff's mouth. Plaintiff asserted in her affidavit in opposition to the motion that she continued to receive follow-up care and treatment from defendant Dr. Kelmans through November 3, 2005. (See Aff. of Marjorie Carmelia at ¶ 4). Defendant does not dispute that assertion in any way.
Based on the well-established doctrine of "continuous treatment," plaintiff's cause of action did not accrue for purposes of the statute of limitations until the course of treatment ended on November 3, 2005. The doctrine is based on CPLR § 214-a, which provides in relevant part 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 said act, omission or failure.
As the First Department explained in Hein v. Cornwall Hospital, 302 AD2d 170, 173 (1st Dep't 2003):
Under the continuous treatment doctrine, the statute is tolled until after the plaintiff's last treatment, "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).
Applying the doctrine in Hein, the Appellate Division reversed the lower court and dismissed defendant's statute of limitations defense, finding that plaintiff's emergency room visit and subsequent office visits were part of a continuous course of treatment for plaintiff's severe abdominal pain. 302 AD2d at 172-73.
Similarly here, plaintiff continued to treat with defendant Kelmans for related dental problems for more than five years after the blade implants had been placed in her mouth in February 2000. The treatment continued through November 3, 2005, nearly two years after the January 15, 2004 discharge in bankruptcy. Therefore, plaintiff was not deprived of legal capacity to commence this suit, as she could not have listed this after-acquired claim during the bankruptcy proceeding.
Application of the continuous treatment doctrine in this case finds support in a variety of cases. For example, relying on the holding by the Court of Appeals in Young v. NYC Health and Hospitals Corp., 91 NY2d 291 (1998), the First Department recently held in Hardison v. NYCHHC, 18 AD3d 224 (2005) that the continuous treatment doctrine tolled the plaintiff's time to file a Notice of Claim where the plaintiff returned to Bellevue for follow-up care and treatment for weeks after eye surgery.
Also, and as particularly relevant here, the Second Department applied the doctrine to a motion to dismiss for lack of capacity to sue in Martinez v. Desai, 273 AD2d 447 (2000). There, the plaintiff had treated with the defendant from January 1992 through October 1994 for pain in his stomach and back and blood in his urine. In September 1993, he had filed a bankruptcy petition, which resulted in a discharge order dated December 28, 1993. Plaintiff commenced a medical malpractice action in 1997, and the defendant moved to dismiss claiming that plaintiff lacked standing to sue because he had failed to list the claim as an asset in his bankruptcy case. The lower court granted the motion, but the Appellate Division reversed, finding "issues of fact as to whether this action accrued prior to the close of the bankruptcy proceeding." 273 AD2d at 448.
In the case at bar, plaintiff asserts that the treatment continued after the close of the bankruptcy. Defendant has not disputed the claim, even to the extent of creating an issue of fact. Therefore, pursuant to the continuous treatment doctrine, the statute is tolled until plaintiff ended her treatment with Dr. Kelmans on November 3, 2005, well after the January 15, 2004 bankruptcy discharge, and plaintiff is entitled to proceed with this action.
Accordingly, it is hereby
ORDERED that defendant's motion is denied. Plaintiff's time to file a Note of Issue is extended through June 30, 2008. Defendant is granted sixty days from the filing to make any dispositive motion.
This constitutes the decision and order of this Court.