        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1194.1
CA 12-02185
PRESENT: SMITH, J.P., CENTRA, FAHEY, AND WHALEN, JJ.


DENNIS GREEN AND THERESA GREEN,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ASSOCIATED MEDICAL PROFESSIONALS OF NY, PLLC,
ET AL., DEFENDANTS,
AND TIMOTHY E. KENDRICK, RPAC, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (DANIEL P. LARABY
OF COUNSEL), FOR DEFENDANT-APPELLANT.

DEFRANCISCO & FALGIATANO LAW FIRM, SYRACUSE (JEAN MARIE WESTLAKE OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered March 13, 2012. The order denied
the motion of defendant Timothy E. Kendrick, RPAC, to dismiss the
complaint against him.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced these medical malpractice
actions seeking damages arising from the alleged failure of defendants
to diagnose and treat the prostate cancer of Dennis Green (plaintiff)
in a timely manner. In appeal No. 1, defendant Timothy E. Kendrick,
RPAC (Timothy) contends that Supreme Court erred in denying his motion
to dismiss the complaint against him as time-barred pursuant to CPLR
3211 (a) (5). In appeal No. 2, defendants contend that the court
erred in denying what the order on appeal characterizes as
“[d]efendant’s motion” to dismiss the complaints against them pursuant
to CPLR 3211 (a) (3) based on plaintiffs’ lack of capacity to sue. We
affirm the order in appeal No. 1, and we reverse the order in appeal
No. 2.

     With respect to appeal No. 1, we note that “[a]n 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” (CPLR
214-a). Here, Timothy met his initial burden on the motion by
demonstrating that he last treated plaintiff on September 27, 2007,
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                                                         CA 12-02185

and that plaintiffs commenced their action against him over two years
and six months later, on May 18, 2011 (see Massie v Crawford, 78 NY2d
516, 519, rearg denied 79 NY2d 978; Nailor v Oberoi, 237 AD2d 898,
898; see generally Larkin v Rochester Hous. Auth., 81 AD3d 1354, 1355;
Perrino v Maguire, 60 AD3d 1475, 1476). “The burden therefore shifted
to plaintiff[s] to establish the applicability of the continuous
treatment doctrine, which tolls the Statute of Limitations until the
end of the course of treatment” (Nailor, 237 AD2d at 898, citing
Massie, 78 NY2d at 519).

     We conclude that plaintiffs met that burden. “[U]nder the
‘continuous treatment doctrine,’ a Statute of Limitations or a notice
of claim period does not begin to run until ‘the course of treatment
which includes the wrongful acts or omissions has run continuously and
is related to the same original condition or complaint’ ” (Young v New
York City Health & Hosps. Corp., 91 NY2d 291, 296, quoting Borgia v
City of New York, 12 NY2d 151, 155; see Hilts v FF Thompson Health
Sys., Inc. [appeal No. 2], 78 AD3d 1689, 1691). “The toll of the
continuous treatment doctrine was created to enforce the view that a
patient should not be required to interrupt corrective medical
treatment by a physician and undermine the continuing trust in the
physician-patient relationship in order to ensure the timeliness of a
medical malpractice action” (Young, 91 NY2d at 296; see Rizk v Cohen,
73 NY2d 98, 104). It thus follows that “ ‘[t]he continuous treatment
doctrine may be applied to a physician who has left a medical group,
by imputing to him or her the continued treatment provided by
subsequently-treating physicians in that group’ ” (Mule v Peloro, 60
AD3d 649, 650; see Watkins v Fromm, 108 AD2d 233, 233-235; see
generally Cole v Syracuse Community Health Ctr., 209 AD2d 1005, 1005).
Here, plaintiffs raised an issue of fact concerning the applicability
of the continuous treatment doctrine by submitting evidence that
plaintiff was a group patient of defendant Syracuse Urology
Associates, P.C. (SUA) and defendant AMP Urology (AMP), that plaintiff
underwent a continuous course of treatment that began in 2004, and
that such treatment remained ongoing within two years and six months
of the commencement of the action (see Ozimek v Staten Is. Physicians
Practice, P.C., 101 AD3d 833, 834-835; Cole, 209 AD2d at 1005;
Watkins, 108 AD2d at 239-242).

     With respect to appeal No. 2, we address at the outset two
procedural issues concerning the motions to dismiss the complaints for
lack of capacity to sue.

     First, we note that, although SUA was a moving defendant in
appeal No. 2, was named in the affidavit of service of the notice of
appeal as a defendant represented by counsel, and seeks relief in
defendants’ joint appellate brief in appeal No. 2, it was not named as
an appellant in the notice of appeal. Pursuant to CPLR 2001, we
disregard the error in the text of the notice of appeal and treat the
appeal as also taken by SUA (see Matter of Tagliaferri v Weiler, 1
NY3d 605, 606).

     Second, we note that AMP was not named as a movant in defendants’
                                 -3-                          1194.1
                                                         CA 12-02185

respective motion papers in appeal No. 2, but the court characterized
AMP as a movant in the order in appeal No. 2. Plaintiffs do not
contend on appeal that the court erred in doing so, and we likewise
deem AMP to have been a movant (see CPLR 2001).

     We agree with defendants in appeal No. 2 that the complaints
should have been dismissed because plaintiffs lack capacity to sue.
Here, plaintiffs filed for chapter 7 bankruptcy protection on April
22, 2009 without listing a potential medical malpractice claim as an
asset, and they obtained a bankruptcy discharge on August 3, 2009.
“The failure of . . . plaintiff[s] to disclose a cause of action as an
asset in a prior bankruptcy proceeding, the existence of which the
plaintiff[s] knew or should have known existed at the time, deprive[s]
the plaintiff[s] of the legal capacity to sue subsequently on that
cause of action” (Whelan v Longo, 23 AD3d 459, 460, affd 7 NY3d 821;
see R. Della Realty Corp. v Block 6222 Constr. Corp., 65 AD3d 1323,
1323; Technology Outsource Solutions, LLC v ENI Tech., Inc., 21 AD3d
1280, 1281-1282; see generally Dynamics Corp. of Am. v Marine Midland
Bank-N.Y., 69 NY2d 191, 196-197; Dischiavi v Calli [appeal No. 2], 68
AD3d 1691, 1692-1693). Inasmuch as plaintiffs acknowledge that they
did not list the instant malpractice claims on their 2009 bankruptcy
petition, we must determine when plaintiffs’ claims accrued, whether
plaintiffs knew or should have known of those claims at the time of
that bankruptcy filing, and what effect, if any, the bankruptcy
proceeding has on plaintiffs’ capacity to sue. We note that the
bankruptcy proceeding was reopened by the United States Bankruptcy
Court for the Northern District of New York during the pendency of
this appeal.

     With respect to the issue of accrual, we note that “[a]n action
in medical malpractice ‘accrues’ at the date of the original negligent
act or omission, [and] subsequent continuous treatment does not change
or extend the accrual date but serves only to toll the running of the
applicable Statute of Limitations” (Matter of Daniel J. v New York
City Health & Hosps. Corp., 77 NY2d 630, 634; see Young v New York
City Health & Hosps. Corp., 91 NY2d 291, 295). Here, in this medical
malpractice case based on the alleged failure of defendants to render
a proper diagnosis for plaintiff, the accrual date could be no later
than approximately April 2008, when plaintiff’s cancer returned.
Inasmuch as plaintiffs filed for bankruptcy protection in April 2009,
we conclude that plaintiffs’ claims accrued prior to the bankruptcy
filing.

     With respect to the issue whether plaintiffs should have known of
their instant claims at the time of the bankruptcy filing, we note
that “plaintiff[s’] knowledge of the facts giving rise to the
claim[s], rather than [their] knowledge of [their] legal right[s], is
decisive” (Cafferty v Thompson, 223 AD2d 99, 101, lv denied 88 NY2d
815 [emphasis added]; see Hansen v Madani, 263 AD2d 881, 883).
“Neither ignorance of the law nor inadvertent mistake excuses a
plaintiff’s failure to list such a claim as a potential asset in the
bankruptcy petition” (Hutchinson v Chana Weller, DDS, PLLC, 93 AD3d
509, 510). Here, although they might not have known that defendants’
alleged failure to render a proper diagnosis was actionable, on the
                                 -4-                          1194.1
                                                         CA 12-02185

record before us we conclude that plaintiffs knew of the circumstances
of plaintiff’s treatment with defendants and plaintiff’s cancer, i.e.,
the facts giving rise to the malpractice claims, prior to the
bankruptcy filing.

     Finally, with respect to the issue of the reopening of the
bankruptcy proceeding, we note that, “[i]n light of the defect based
on a lack of capacity to sue, . . . the trustee must commence a new
action in a representative capacity on behalf of [plaintiffs’]
bankruptcy estate and, in doing so, [the trustee] will receive the
benefit of the [six]-month extension embodied in CPLR 205” (Pinto v
Ancona, 262 AD2d 472, 473; see Reynolds v Blue Cross of Northeastern
N.Y., 210 AD2d 619, 620). We further note that, although we are
granting defendants’ motions, the complaints are dismissed without
prejudice to commence a new action asserting these claims pursuant to
CPLR 205 (a) (cf. Chiacchia & Fleming v Guerra, 309 AD2d 1213, 1213-
1214, lv denied 2 NY3d 704).




Entered:   November 15, 2013                    Frances E. Cafarell
                                                Clerk of the Court
