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