Mignott v Kreidman
Annotate this CaseDecided on March 15, 2005
Supreme Court, New York County
Hazel Mignott, Plaintiff,
against
Melvin Kreidman, JERRY SLATER, and KREIDMAN & SLATER, Defendants.
100173/2001
Walter B. Tolub, J.
Upon the foregoing papers, it is ordered that, upon the prior court filings of the parties and the insistence of counsel for the parties, the court shall address the issues raised by defendants' previously filed motion for summary judgment.
This court previously denied defendants' motion for summary judgment due to the undisputed failure of the defendants to move for summary judgment within 120 days pursuant to Brill v. City of New York, 2 NY3d 648 and Miceli v. State Farm Mutual Auto. Ins. Co., 3 NY3d 725. Because both parties indicate that they seek resolution of the issue addressed by the defendants' motion, the court will assent.
Defendants represented plaintiff in a medical malpractice action against the New York City Health and Hospitals Corp. ("HHC"). Plaintiff allegedly sustained injuries during an abdominal hysterectomy performed during her admittance at Kings County Hospital. Plaintiff was discharged from the hospital on April 19, 1983. She filed a notice of claim on or about July 8, 1983. HHC demanded an examination pursuant to General Muncipal Law § 50-h (the "50-h [*2]examination") on or about July 29, 1983. After several postponements, the 50-h examination was conducted on July 23, 1984. Defendants commenced plaintiff's malpractice action on January 24, 1985, approximately one year and nine months after her discharge.
On October 31, 1995, more than ten years after commencement, HHC moved to dismiss the complaint as untimely because it was not filed within the applicable statute of limitations period of one year and ninety days. The trial court denied HHC's motion, ruling that under Hauptmann v. New York City Health & Hosps. Corp., 162 AD2d 588 (2nd Dept. 1990), the statute of limitations was tolled due to the inability of plaintiff to commence the action until a 50-h examination was held. The Appellate Division, Second Department, reversed and abrogated its holding in Hauptmann (Mignott v. New York City Health & Hosps. Corp., 250 AD2d 165, 171 [2nd Dept. 1998]).
The Appellate Division in Hauptmann had held that because a claimant cannot commence a case against HHC until a 50-h examination has been conducted, the tolling provision of CPLR 204(a) applied. Under that holding, the statute of limitations tolls from the date of the demand for a 50-h examination until the date the examination is scheduled by the HHC.
In abrogating Hauptmann, the Appellate Division analyzed the holding of the Court of Appeals in Baez v. New York City Health & Hosps. Corp, 80 NY2d 571 (1992). In that case, the Court of Appeals held that the Legislature, under General Municipal Law § 50-i(3), did not intend to toll the limitations period by pending compliance with a request for an examination before commencing an action. The Appellate Division applied this holding to conclude that no stay tolled the limitations period pending the 50-h examination. This conclusion resulted in the express abrogation of the holding in Hauptmann and the dismissal of the plaintiff's medical malpractice action.
Plaintiff subsequently filed this legal malpractice action against her former attorneys. Defendants now move for summary judgment, arguing, inter alia, that given the state of the law at the time, they did not commit malpractice as a matter of law.
"To sustain a cause of action for legal malpractice, a party must show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. What constitutes ordinary and reasonable skill and knowledge cannot be fixed with precision, but should be measured at the time of representation" (Darby & Darby, P.C. v. VSI Int'l, Inc., 95 NY2d 308, 313 [2000][internal quotation marks and citations omitted]). An attorney should not be held liable for malpractice where an issue of law was unsettled or debatable because an attorney is required to act only in a manner that is reasonable and consistent with the law at the time of representation (id. at 315).
At the time of defendants representation, the law was at best unclear as to whether a claimant could commence an action prior to completion of a demanded 50-h examination. That the law was not settled is established by the decision in Hauptmann, which, although decided after the facts relevant herein, supported defendants' argument in Mignott that the action could not be commenced until a 50-h examination was held. If the Appellate Division believed this to be the law, it could not have been malpractice for the defendants to have believed this to be the law. The unsettled nature of the law is further established by the fact that HHC did not move for summary judgment until ten years after commencement of the action. Defendants also [*3]submited an affidavit of an expert as to the unclear status of the law at the relevant time. Finally, the defendants understanding as to the law was supported by the decision of the trial judge and by the fact that the Appellate Division did not expressly abrogate the holding in Hauptmann until its holding in Mignott.
In opposition, plaintiff offers no evidence that establishes that defendants failed to exercise reasonable skill commonly possessed by members of the profession. The affidavit of plaintiff's expert, Marshall Coleman, Esq., contains no citations or even statement of personal knowledge as to the status of the law at the relevant time period that would raise a question of fact to be decided at trial. Contrary to his conclusory statements, defendants did not unwittingly fail to consider the statute of limitations, but rather believed that it tolled during the pendency of a 50-h hearing. Plaintiff submitted no evidence that this belief was unreasonable at the time. Accordingly, defendants have established that they did not commit malpractice as a matter of law and it is
ORDERED that defendants' motion for summary judgment is granted, the complaint is dismissed and the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the decision and order of the court.
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