Vega-Ruiz v Keller

[*1] Vega-Ruiz v Keller 2005 NY Slip Op 51766(U) Decided on September 26, 2005 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 26, 2005
Supreme Court, Bronx County

Lissette Vega-Ruiz, Plaintiff,

against

Steven M. Keller, M.D., DAVID KATZ, M.D., MITCH ROSEN, M.D., SUSANNE Y. LEE, M.D., MANUEL TEJERA, M.D., AZIZ ESTRAGHI, M.D., STUART KAHN, M.D., AARON T. SPINGARN, M.D., ELI AVISAR, M.D., D*O*C*S, D*O*C*S SUTTON PARK, D*O*C*S CRESTWOOD II, D*O*C*S BRONX, D*O*C*S/PHYSICIANS AFFILIATED WITH BETH ISRAEL MEDICAL CENTER, BETH ISRAEL MEDICAL CENTER, ST. AGNES HOSPITAL, and DAVID M. KATZ, M.D., Defendants.



8470/99

George D. Salerno, J.

Defendants (STEVEN M. KELLER, M.D., DAVID KATZ,

M.D., SUSANNE Y. LEE, M.D., MANUEL TEJERA, M.D., ELI AVISAR, M.D., MITCH ROSEN, M.D., BETH ISRAEL MEDICAL CENTER s/h/a D*O*C*S, D*O*C*S SUTTON PARK, D*O*C*S CRESTWOOD II, D*O*C*S BRONX, D*O*C*S/PHYSICIANS AFFILIATED WITH BETH ISRAEL MEDICAL CENTER) [FN1] move for an order pursuant to CPLR §3025(b), granting leave to amend their Answers to add the affirmative defense that Plaintiff lacks standing to bring this action and upon granting such relief dismissing plaintiff's complaint. (See CPLR §3211(a)(3).

Plaintiff's second verified complaint sets forth eleven (11) causes of action ranging from malpractice to several discrimination causes of action. Plaintiff's verified Supplemental Bill of Particulars, dated June 17, 2004, withdrew the causes of action alleging several discriminatory practices. The remaining causes of action seek monetary damages arising from defendants failure to timely diagnose and treat a carcinoid tumor located in Plaintiff's left lung; improperly performing a "lower left lobectomy on September 24, 1996, failing to provide appropriate post operative care and lack of informed consent .[FN2]

Plaintiff commenced this action by filing a Summons with Notice on February 26, 1999. [*2](See Defendants' Notice of Motion, Ex."A"). Service of Plaintiff's Complaint was effectuated on July 26, 1999. Defendants joined issue on September 13, 2001. Plaintiff then served a Verified Second Amended Complaint dated May 17, 2002.

Leave to Amend Pleadings

Leave to amend a pleading should be freely granted absent a showing of prejudice resulting from the delay and provided the proposed amendment is not plainly lacking in merit (see, CPLR 3025[b]; Fidelity Holdings Inc., v. Marom, 276 AD2d 468; 713 NYS2d 703 [2nd Dept. 2000]; Tarantini v. Russo Realty Corp., 273 AD2d 458, 712 NYS2d 358). The granting of such a motion is committed to the sound discretion of the trial court, and will not be lightly disturbed Santori v. Met Life (11 A.D.3d 597, 784 N.Y.S.2d 117; Henderson v. Gulati, 270 AD2d 308, 705 NYS2d 54).

Defendants seek to add the affirmative defense asserting Plaintiff lacks standing to bring this suit. (Defendants' Aff., p 6). This defense is based on the Plaintiff's failure to list this action as an asset (a potential claim under 11 USC §541(a)(1) in her bankruptcy proceeding. (id). Plaintiff does not show or even allege prejudice by the proposed amendment. Plaintiff's protest relates to the delay in asserting the defense of lack of legal capacity to bring this action. (Plaintiff's Aff., pp1, 2) Mere lateness is not a barrier to amending a pleading (Amica Mutual Ins. Co. v. Hart Alarm Systems, Inc. 218 AD2d 835, 629 NYS2d 874; Fitzpatrick v. Structure Tone Inc. 201 AD2d 373, 607 NYS2d 928). It is well settled that leave to amend may be sought at "any time"; [FN3] and even a motion made on the "eve of trial, is not, in and of itself, a sufficient ground for denying leave to amend." (Barnes v. County of Nassau), 108 AD2d 50, 52 [2d Dept. 1985] See also Siegel, NY Practice, §237, at 398 [4th Ed. 2005].

In any event, Defendants have provided an adequate explanation for the delay in raising the defense regarding Plaintiff's lack of ability to sue. It was not until October 12, 2004, that Defendants learned when Plaintiff's Bankruptcy was commenced. (Defendants' Barroso's Reply Aff.). Defendants were unable to obtain Plaintiff's bankruptcy file from the court archives in Missouri until February 2005. (Defendants' Notice of Motion, Ex. "D"). Therefore, defendants' motion for leave to amend their answers to include the affirmative defense asserting Plaintiff's lack of standing is granted.

It is undisputed that plaintiff filed a petition "under title 11 United States Code.... on May 1, 1997 and an order for relief was entered under chapter 7" (Defendants' Notice of Motion Ex. D). Thus, the entry of a final decree dated August 26, 1997 concluded the administration of plaintiff's estate.

The Bankruptcy Code defines property belonging to the debtor to include a cause of action which existed at the time the bankruptcy proceeding was commenced (see 11 USC §541 [a] [i]; Martinez v. Desai 273 AD2d 447, 710 NYS2d 372; Weitz v. Lewin 251 AD2d 402, 675 NYS2d 544). It is incumbent upon the debtor to fully disclose all assets. (see Dynamics Corp. Of Am. v. Marine Midland Bank - 69 NY2d 191, 195 505 NE2d 601, 513 NYS2d 91); and it has been specifically held that a debtor must disclose any litigation likely to arise in a non-bankruptcy contest (Oneida Motor Freight Inc.v. United Jersey Bank 848 F.2d 414, 417).

This broad definition of property has been held to include contract claims (Milton [*3]Weinstein Associates v. Nynex Corporation 266 AD2d 138, 669 NYS2d 23); tort claims, (Burton v. 215 East 77th Associates 284 AD2d 122, 735 NYS2d 337) and even contingent claims (266 AD2d 138; 699 NYS2d 23).

Consequently, when a debtor files a petition for bankruptcy all legal and equitable interests of the debtor are assets that belong to the bankruptcy estate (USC §541 [a] [I] ). Therefore, a debtor such as the plaintiff, is required to set forth a schedule identifying and listing as an asset his cause of action for malpractice on the bankruptcy petition so that the trustee could determine whether this claim should be abandoned or administered by the bankruptcy court for the benefit of creditors. "A debtor who fails to disclose property belonging to the bankruptcy estate cannot later assert title to the property." (see Dynamics Corp. Of Am. v. Marine Midland Bank -, supra ; Burton v. 215 East 77th. Associates, supra ; Krystal Cadillac - Oldsmobile GMC Truck Inc. v. GMC 337 F3d 314, 322-323 [3rd Cir. 2003] ).

Manifestly, a trustee who has no knowledge of a malpractice claim possessed by the debtor can not be deemed to have abandoned it (see Stephen v. Merchants Collateral Corp., 256 NY 418, 176 N.E. 824; First Natl. Bank v. Lasater 196 U.S. 115, 25 S.C. 206). Claims that are not listed in the schedule of assets, that exist at the time of the filing of a petition for bankruptcy remain vested in the trustee (see Reynolds v. Blue Cross of Northeastern New York, Inc. 210 AD2d 619, 620 NYS2d 164).

The trustee of the bankrupt's estate is vested with title to all of the bankrupt's property including "rights and choices in action existing at that time."

(Bromley v. Fleet Bank, 240 AD2d 61, 659 NYS2d 611 [2d Dept. 1997] ). Only property that has been "dealt with" or "abandoned" by the trustee may re-vest in the debtor in his individual capacity at the conclusion of the bankruptcy proceedings and the debtor's property cannot be "dealt with" or "abandoned" unless it is listed in the debtor's schedule of assets. (Dynamics Corp. Of America v. Marine Midland Bank-New York, supra ,.

Plaintiff's failure to list the instant action in the schedule of assets of her estate, (11 USC 541 (a) (l)), is evinced by the bankruptcy file submitted by defendants. (Defendants' Notice of Motion, Ex."D"). Whether plaintiff innocently failed to schedule the unliquidated claim is unavailing Dynamics Corp. Of America v.Marine Midland Bank-New York, supra .

Conspicuously, absent from plaintiff's opposition is an affidavit that presents evidentiary facts concerning the treatment rendered, if any, regarding plaintiff's post operative visits on May 5, 1997 and June 11, 1997. Plaintiff also failed to submit an opinion by a medical expert that the treatment rendered on May 5, 1997 and June 11, 1997 was not in accord with good and acceptable medical practice or constituted independent acts of malpractice. Counsel's assertions that separate acts of malpractice were committed when plaintiff made the office visits after the completion of the bankruptcy proceeding is without merit. Allegations set forth in Plaintiff's Bill of Particulars are insufficient and counsel's affirmation without personal knowledge lacks probative value.

Plaintiff argues that in the event the court is inclined to grant the relief requested by defendants regarding plaintiff lack of capacity to bring this action then dismissal of plaintiff's causes of action should be limited to claims that accrued before plaintiff filed her bankruptcy petition. Plaintiff essentially argues that she may maintain this action to the extent that it refers to: "negligent acts and or omissions and malpractice occurring subsequent to the filing of the [*4]bankruptcy petition on 5/1/97, [FN4] [and]... claims for injuries, pain and suffering and other compensable losses occurring and/or continuing after that time."

In this regard, Plaintiff's Counsel refers to two (2) post-operative visits which occurred on May 5, 1997, and June 11, 1997 which plaintiff

argues entail acts or omissions constituting separate acts of malpractice. In support of this argument counsel generally refers to the Bill of Particulars which are annexed to counsel's affirmation in opposition.

Plaintiff's argument fails because those visits are not part of the allegations in the Complaint and in any event arise from the alleged deviations which is when plaintiff's cause of action accrued. As mentioned previously, Plaintiff's third cause of action refers to post operative visits to "Dr. Keller"; and Plaintiff last visited Dr. Keller on April 14, 1997 - which was prior to the May 1, 1997 filing date. Moreover, such post-operative visits relate back to date when Plaintiff's cause of action accrued.

Recent cases regarding Chapter 7 bankruptcy proceedings have held that a personal injury lawsuit would not constitute an asset of the bankruptcy estate where the asset neither had its roots in the pre-bankruptcy past, nor accrued at the time the bankruptcy petition was filed. [FN5] (Cruz v. Montgomery, 2004 NY Slip Op 51464U, 2 [Sup Ct., New York County 2004] [emphasis added]: La Manna v. Carrigan, 196 Misc2d 98, 103 [Civ Ct. Richmond County 2003]; Niedermeier v. St. Joseph Hosp., 188 Misc2d 107, [Sup Ct, Erie County 2001] ).

It is well-established that an action for medical malpractice accrues on the date of the original act or omission, or as stated in Young v. New York City Health & Hospital Corp, (91 NY2d 291), on the date when the alleged original negligent act of omission occurred. (McDermott v. Torre, 56 NY2d 399, 407, 437 NE2d 1108, 452 NYS2d 351[1982]; Daniel J. v. New York City Health & Hosps. Corp., 77 NY2d 630, 634, 571 NE2d 704, 569 NYS2d 396 (1991); Branigan v. DeBrovner, 197 AD2d 270, 273, 612 NYS2d 119, [1st Dept]. 1994).

To the extent that plaintiff is contending that the treatment period extended beyond the termination of the bankruptcy proceeding this argument does not enhance plaintiff's right to pursue the instant action. Instead of operating to postpone accrual of the claim, the [continuous treatment] doctrine functions merely as a 'toll', suspending the running of the statute [of limitations] during the period of continuous treatment. Hence, the claim does 'accrue' at the time of the original injury, but is in effect suspended until treatment is concluded." [emphasis added] (See Siegel, NY Practice §42 [4th Ed. 2005] ).

Plaintiff's allegations that her post-operative complaints to Dr. Keller concerned [*5]discomfort "in and about the site of the surgery"; [FN6] and that Dr. Keller failed to administer the allegedly proper tests and procedures during "all visits" subsequent to the date of the surgery (9/24/96), [FN7] clearly demonstrates that Plaintiff's claim had its roots in the Plaintiff's September 24, 1996 surgery, and thus, in her "pre-bankruptcy past"; which also indicates that Plaintiff's cause of action accrued prior to Plaintiff's two post-operative visits.

Even if Plaintiff's third cause of action, (which actually refers only to Dr. Keller's" alleged negligence in post-operative treatment), could be construed to include the May 5, 1997 and June 11, 1997 visits to Defendant Beth Israel Medical Center,[FN8] such claim would also have its roots in Plaintiff's "pre-bankruptcy past", and accrued prior to the May 1, 1997 bankruptcy filing.

Thus, Plaintiff's four causes of action are rooted in her pre-bankruptcy past, and all accrued prior to her bankruptcy filing.[FN9] Consequently, Plaintiff was required to list her action in the schedule of assets. Ciancimino v. McGinn, 2004 NY Slip Op 50914U, 2 (Sup Ct, New York County 2004). In any event in a malpractice action the cause of action accrues on the date when the alleged original negligent act of omission occurred (Matter of Daniel J. v. New York City Health & Hospitals Corp. Supra, 77 NY2d 630, 634.

CONCLUSION

Defendants' Answer is hereby amended, pursuant to CPLR §3025(b), to include the affirmative defense that Plaintiff, Vega-Ruiz, lacks legal capacity to bring this action. Since Plaintiff failed to list this action in the schedule of assets in the bankruptcy proceedings, Plaintiff [*6]lacks standing to pursue this action. Accordingly, plaintiff's action is dismissed (cf. Genova v. Madani, 283 A.D.2d 860, 725 NYS2d 141). Whether a new action maybe maintained upon the same series of transactions or occurrences, within 6 months, pursuant to CPLR § 205 (a) rests with the Trustee. (See Siegel, NY Practice §52, at 75 [4th Ed. 2005], also Genova v Madani, supra , 283 AD2d 860, Pinto v. Ancona, 262 AD2d 472, 473, 692 NYS2d 128 [2d Dept. 1999] ).

This constitutes the decision and order of this Court.

Dated: September 26, 2005

_______________________

George D. Salerno, J.S.C.

George D. Salerno, J.S.C.

TABLE OF AUTHORITIES

Cases

Armstrong v. Peat, 150 AD2d 189, 190. 3

Barnes v. County of Nassau, 108 AD2d 50(2d Dept. 1985) 3

Branigan v. DeBrovner, 197 AD2d 270 (NY App. Div., 1994) 7, 8

Bromley v. Fleet Bank, 240 AD2d 611 (NY App. Div., 1997) 4, 5

Ciancimino v. McGinn, 2004 NY Slip Op 50914U, 2 (NY Misc., 2004) 8, 9

Cruz v. Montgomery, 2004 NY Slip Op 51464U, 2 (NY Misc., 2004) 6

Daniel J. v. New York City Health & Hosps. Corp., 77 NY2d 630 (NY, 1991) 7

Dynamics Corp. of America v. Marine Midland Bank-New York, 69 NY2d 191 (NY, 1987) 4

Genova v. Madani, 283 AD2d 860 (3d Dept. 2001) 9

Kitchner v. Kitchner, 100 AD2d 954, 954 3

LaManna v. Carrigan, 196 Misc2d 98, 103 (NY Misc., 2003) 6

McDermott v. Torre, 56 NY2d 399 (NY, 1982) 7

Niedermeier v. St. Joseph Hosp., 188 Misc2d 107 (NY Misc., 2001) 6

Pinto v. Ancona, 262 AD2d 472 (2d Dept. 1999) 9

[*7]Tulis v. Nyack Hospital, 271 AD2d 684 (2d Dept. 2000) 9

Statutes

11 USC §541(a)(1) 3

CPLR § 205(a) 9

CPLR §3025(b) 1

CPLR §3211(a)(3) 2

Other Authority

Siegel 4th ed., NY Prac §136 9

Siegel 4th ed., NY Prac §237 3

Siegel 4th ed., NY Prac §52 2, 9

Siegel, 4th Ed., NY Practice §42 7 Footnotes

Footnote 1: It appears that this action was discontinued, or dismissed, against other named defendants: ST. AGNES HOSPITAL, AZIZ ESTRAGHI, M.D., STUART KAHN, M.D., and AARON T. SPINGARN, M.D.

Footnote 2:The treatment period upon which Plaintiff's remaining causes of action are grounded from April 20, 1994 to June 11, 1997.

Footnote 3:Kitchner v. Kitchner, 100 AD2d 954, 954 (2d. Dept. 1984)

Footnote 4:Plaintiff filed a petition in bankruptcy, under Chapter 7 of the Bankruptcy Code (11 USC), in the Bankruptcy Court for the Southern District of New York on May 1, 1997.(Defendants' Notice of Motion, Ex."D").

Footnote 5: Defendants' Notice of Motion, Ex. "D" Plaintiff filed her petition in bankruptcy, under Chapter 7 of the Bankruptcy Code (11 USC), in the Bankruptcy Court for the Southern District of New York on May 1, 1997. Defendants' Notice of Motion, Ex."D").

Footnote 6: Plaintiff's "Verified Second Amended Complaint", ¶ 51.

Footnote 7: Plaintiff's Verified Supplemental Bill of Particulars as to Dr. Keller, ¶s 3, 4, Plaintiff's Exh. "B".

Footnote 8: Plaintiff allegedly visited Beth Israel Medical Center, for post-operative treatment, at least five times prior to May 1, 1997, to wit, on: October 14, 1996, January 27, 1997, February 19, 1997, April 4, 1997, April 14, 1997, and two times afterwards, on: May 5, 1997 and June 11, 1997. (Plaintiff's "Verified Supplemental Bill of Particulars," as to Beth Israel; ¶ 3, 4, Plaintiff's Ex. "A").

Footnote 9: Plaintiff's remaining contentions are to be without merit. Plaintiff contends that she may maintain this action because of the damages she sustained such as ("loss of earning", and permanency for loss of part of her lung), (which Plaintiff experienced subsequent to May 1, 1997). (Plaintiff's Aff. p 3-4). However, it is an "elementary rule that a Plaintiff may not split a single cause of action and must seek and recover her entire damages in one action." Yablen v. Metropolitan, 138 NYS2d 67 [Sup. Kings 1955]. See Siegel, NY Practice, § 220 [4th Ed. 2005]. Also, whether Plaintiff's damages continued after May 1, 1997 filing, is irrelevant. What is relevant is when Plaintiff's cause of action accrued.