ParfumGigi@aol.com

Anthony Lin

New York Law Journal

10-31-2007

A New York judge has permitted a legal malpractice suit to proceed against a group of personal injury lawyers who tried to argue that the medical malpractice suit they allegedly botched had no merit in the first place.

"[S]uch arguments fly in the face of the fact that Defendants represented Plaintiffs for almost three years, presumably because they believed that the lawsuit had merit," Manhattan Supreme Court Justice Emily Goodman wrote in Kremen v. Morelli, 101739/06.

The legal malpractice suit alleges that firms Morelli Ratner and Schapiro & Reich failed to seek a bankruptcy extension for client Victoria Kremen, causing her case to be thrown out on statute-of-limitations grounds.

Kremen received a breast cancer diagnosis in 1995 and almost immediately underwent a bilateral mastectomy. But she claimed she found in April 1999 that the cancer was misdiagnosed. In October 1999, she filed for personal bankruptcy. She retained Morelli Ratner in June 2001, and a medical malpractice suit was commenced a month later.

The statute of limitations for medical malpractice cases in New York is 2 1/2 years from the date of the malpractice. Though Kremen claimed her misdiagnosis was fraudulently concealed from her, the Appellate Division, 1st Department, upheld the trial court that threw out her case, ruling that her 25-month delay in filing suit, even after discovering the misdiagnosis, was "unreasonable as a matter of law."

Goodman's decision was on Morelli Ratner's motion to dismiss Kremen's amended complaint. In May, Goodman also ruled against the defendants on a motion to dismiss the original complaint, finding that an argument based on the U.S. Bankruptcy Code and the doctrine of equitable estoppel might have saved Kremen's suit.

In her latest opinion, Goodman said many of the arguments advanced by the defendant firms were rehashed from their previous motion to dismiss and seemed based on the theory that "Plaintiffs lost their [medical malpractice] lawsuit because it had no merit, not because there was any malpractice on the part of the Morelli defendants."

The defendants variously argued that both the legal malpractice case and underlying medical malpractice case had not been sufficiently pleaded. Goodman said the firm's argument "is convoluted, difficult to comprehend and is otherwise without merit."

She pointed out that in the medical malpractice case, the defendants had something to do with the pleadings.

"If it is Defendant's contention that Plaintiffs had failed to properly plead their claims in that action," Goodman said, "it was the responsibility of Defendants, as Plaintiff's counsel, to sufficiently plead and argue such claims."

Kremen was represented by Richard Frank of Manhattan. Morelli Ratner partner Benedict P. Morelli represented his firm pro se.