     10-0650-cv
     Bisson v. Martin Luther King Jr. Health Clinic


                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                                      SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
     Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
     the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
     summary order must serve a copy of it on any party not represented by counsel.


 1            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 3rd day of November, two thousand ten.
 4
 5   PRESENT:           DEBRA ANN LIVINGSTON,
 6                      DENNY CHIN,
 7                                      Circuit Judges,
 8                      DAVID G. LARIMER,
 9                                      District Judge.*
10
11
12   DOROTHY BISSON,
13             Plaintiff-Appellant,
14
15            -v.-                                               No. 10-0650-cv
16
17   MARTIN LUTHER KING JR. HEALTH CLINIC, GOOD SAMARITAN HOSPITAL
18   MAMMOGRAM & BREAST DIAGNOSTICS, NASSAU SUFFOLK OBGYN, REBECCA
19   BEZALEL, M.D.
20              Defendants-Appellees.
21
22
23                                          Mary Ellen O’Brien, Garden City, NY, for
24                                          Plaintiff-Appellant.
25
26                                          Michael G. Kruzynski, Lewis Johs Avallone Aviles, LLP, Riverhead,
27                                          NY; Scott G. Christesen, Fumuso, Kelly, DeVerna, Snyder, Swart &
28                                          Farrell, LLP, Hauppauge, NY, for Defendants-Appellees.


              *
              The Honorable David G. Larimer, of the United States District Court for the Western
     District of New York, sitting by designation.
 1           UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND DECREED

 2   that the judgment of the district court be AFFIRMED.

 3           Plaintiff-Appellant Dorothy Bisson appeals from a judgment of the United States District

 4   Court for the Eastern District of New York (Feuerstein, J.), granting Defendants’ motions for

 5   summary judgment on the basis that Plaintiff had not filed her claim in a timely fashion under the

 6   applicable statutes of limitations and was not entitled to equitable estoppel. The district court also

 7   denied Plaintiff’s motion for leave to file a late notice of claim against the Martin Luther King Jr.

 8   Health Clinic. In an earlier appeal in this case, we affirmed the District Court’s finding that Plaintiff

 9   had not timely filed her claim under New York law, but we remanded to allow the Plaintiff to raise

10   the doctrine of equitable estoppel before the District Court. See Bisson v. Martin Luther King Jr.

11   Health Clinic, No. 07-5416-cv, 2008 WL 4951045 (2d Cir. Nov. 20, 2008). We assume the parties’

12   familiarity with the facts and procedural history of the case and the issues on appeal.

13           We engage in de novo review of a district court’s grant of summary judgment, drawing all

14   inferences in favor of the nonmoving party. SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133,

15   137 (2d Cir. 2009). As we have previously noted, “[u]nder New York law, the doctrines of equitable

16   tolling or equitable estoppel ‘may be invoked to defeat a statute of limitations defense when the

17   plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely

18   action.’” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quoting Doe v. Holy See (State of

19   Vatican City), 17 A.D.3d 793, 794 (3d Dep’t 2005)). Further, “‘[d]ue diligence on the part of the

20   plaintiff in bringing [an] action[]’ . . . is an essential element of equitable relief.” Id. (second

21   alteration in original) (quoting Holy See, 17 A.D. at 796).




                                                        2
 1          Plaintiff argues that equitable estoppel should apply based on Defendants’ alleged failure to

 2   follow acceptable medical practice in failing to diagnose her breast cancer, and the instructions the

 3   doctors purportedly gave that, because nothing was wrong, she could simply come back to the health

 4   facility once she had turned forty to begin yearly routine exams. However, as the District Court

 5   recognized and the Plaintiff concedes, under New York law, in demonstrating entitlement to

 6   equitable estoppel:

 7          [A] plaintiff may not rely on the same act that forms the basis for the claim – the later
 8          fraudulent misrepresentation must be for the purpose of concealing the former tort.
 9          The uncommon remedy of equitable estoppel “is triggered by some conduct on the
10          part of the defendant after the initial wrongdoing; mere silence or failure to disclose
11          the wrongdoing is insufficient.”
12
13   Ross v. Louise Wise Services, Inc., 8 N.Y.3d 478, 491 (2007) (citation omitted) (quoting Zoe G. v.

14   Frederick F. G., 208 A.D.2d 675, 675-76 (2d Dep’t 1994)). Specifically with respect to medical

15   malpractice, the New York Court of Appeals has made clear that a claim of fraudulent concealment

16   cannot be based on the “alleged improper advice to plaintiff that there was nothing wrong.” Rizk

17   v. Cohen, 73 N.Y.2d 98, 105-06 (1989). Instead, Plaintiff must establish that the Defendants,

18   “acting with knowledge of prior malpractice, made subsequent misrepresentations in an attempt to

19   conceal [the] earlier negligence.” Id. at 106.

20          Here, Plaintiff attempts to rely on the alleged instructions regarding when to follow up as the

21   separate and distinct act from the alleged malpractice that would serve as a basis for equitable

22   estoppel. However, she provides no evidence that this recommendation that she come back at the

23   age of forty for a routine exam was made with knowledge of the alleged failure to diagnose her

24   breast cancer. While Plaintiff alleges that Defendants “knew or should be deemed to have known

25   that they did not follow proper medical procedures when [she] initially presented herself to them and


                                                       3
 1   they performed a baseline/screening analysis as if she had no visible symptoms of breast cancer,”

 2   she presents no case law in support of this contention and we have found no New York cases

 3   allowing a plaintiff to establish entitlement to equitable estoppel based simply on a presumption of

 4   knowledge in these circumstances. Cf. Roosa v. Frankel, 166 A.D. 2d 569, 570 (2d Dep’t 1990)

 5   (holding that a dentist’s statement that crowns placed in plaintiff’s mouth would last ten to fifteen

 6   years was “legally insufficient to support a finding that the defendant intentionally concealed an act

 7   of dental malpractice and knowingly misrepresented the condition of the plaintiff’s teeth”). In the

 8   absence of any evidence of subsequent misrepresentations made with knowledge of the prior

 9   malpractice, we agree with the District Court’s conclusion that the Defendants are not equitably

10   estopped from raising a statute of limitations defense in this case.

11          Plaintiff also appeals the District Court’s holding that she was barred by New York’s General

12   Municipal Law from asserting a claim against the Martin Luther King Jr. Health Clinic, an entity

13   owned and operated by Suffolk County. New York law provides that in order to bring a tort suit

14   against a county, a notice of claim must be filed “within ninety days after the claim arises,” N.Y.

15   Gen. Mun. L. § 50-e(1)(a), and the suit itself must be brought within one year and ninety days of the

16   claim arising, id. § 50-i(1). While a court may in its discretion grant an extension of the time in

17   which to serve the notice, “[t]he extension shall not exceed the time limited for the commencement

18   of an action by the claimant” against the municipal defendant. Id. § 50-e(5). Because Plaintiff’s

19   claim is time-barred and not entitled to equitable estoppel here, we need not and do not reach the

20   question whether Plaintiff’s claim against the Martin Luther King Jr. Health Clinic was also barred

21   by these provisions.




                                                       4
1          We have considered Plaintiff’s other arguments on appeal and find that they are without

2   merit or moot. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

3

4

5                                                      FOR THE COURT:

6                                                      Catherine O’Hagan Wolfe, Clerk

7

8




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