Legal Malpractice

Who is to Blame in this Legal Malpractice Case?

By (Andrew Lavoott Bluestone)

It appears that one of two law firms is to blame for plaintiff's medical malpractice fiasco.  Which is it?  InLopresti v Bamundo, Zwal & Schermerhorn, LLP, ;2010 NY Slip Op 33436(U); December 14, 2010; Judge: Martin Shulman we see a familiar problem.  A medical malpractice death case sets two different time clocks running.  In such cases, no only does the attorney have to set up a surrogate's court proceedings and at least get letters of administration, the attorney has to commence both a wrongful death and a personal injury/medical malpractice case and has to do so within a two year time frame. 

Simple, one might say; that's two years!  However, as this case demonstrates, much must be done to get things going, and the client rarely comes to the attorney in the days after the death.  Here, too much time went by. More interesting, this case demonstrates that plaintiff's attorney may well become involved in the litigation as a third party defendant."The complaint in this action for legal malpractice alleges that in the underlying medical malpractice case, Bamundo ZwaI failed to timely commence the first cause of action seeking to recover damages for Vito Lopresti's conscious pain and suffering.  Lopresti alleges she was forced to settle the underlying wrongful death second cause of action for an amount below what she would have recovered had it not been for
Bamundo Zwal's actions.  Bamundo Zwal has impleaded the Reiter law firm alleging that Reiter failed to properly oppose Dr. Marino's motion for summary judgment. The third-party complaint
pleads causes of action for contribution and common-law indemnification.  Reiter served this motion for summary judgment simultaneously with its third party answer and without any discovery being conducted. In this legal malpractice action, Reiter represents both plaintiff Lopresti and itself as third-party defendant."

"Under the circumstances presented here, this court concludes that there was no basis for Reiter to pursue an equitable estoppel defense in opposition to Dr. Marino's motion in the underlying action for summary judgment dismissing the medical malpractice cause of action as time barred. As Zwal himself testified at his June 3, 2010 deposition, Dr. Marino refused to respond to  Bamundo Zwal's first request for records in May 2004 because Vito Lopresti was deceased and no personal representative had been appointed (see Motion at Exh. IO, p. 32). After Lopresti was
appointed administratrix of her husband's estate, Bamundo Zwal made a second  written request to Dr. Marino dated April 19, 2005, less than 30 days before the statute of limitations expired.
This record contains no evidence of any affirmative wrongdoing or purposeful concealment on Dr. Marino's part caused Lopresti's delay in commencing the underlying action (see Zumpano v  Quinn, 6 NY3d at 673; Kamruddin v Desmond, 293 AD2d at 71 5). Lopresti's allegedly incorrect statements to Bamundo ZwaI as to the last date Dr. Marino treated Vito Lopresti and the delay in having a personal representative appointed cannot be held against Dr. Marino. Rather, Lopresti's and/or Bamundo Zwal's own inaction caused the untimely commencement of the underlying case. See, e.g., Public Adm'r of State of New York v Beth Israel Med. Ctr., 2007 WL 176380 (Sup Ct, NY County, Carey, J)(granting summary judgment dismissing action as time barred  and finding that hospital should not be equitably estopped from asserting statute of limitations as a defense where plaintiffs inaction and failure to avail itself of various procedural safeguards' prevented timely  commencement of action)."

Full post as published by New York Attorney Malpractice Blog on December 21, 2010 (boomark / email).