In this action to recover damages for legal malpractice, defendants Edward H. Suh and Edward H. Suh and Associates, P.C. ("defendants") move pursuant to CPLR § 3211 [a] [7] for an order dismissing plaintiff Soo Hwan Kim's ("plaintiff") complaint for failure to state a cause of action. Plaintiff's wife, a 40 year old woman with whom plaintiff had two children, died as a result of what plaintiff's alleges was a negligently performed liver biopsy. Plaintiff alleges that upon emerging from the liver biopsy, which was performed at Long Island College Hospital, his wife began bleeding from the nose, mouth, ears and other orifices and then slipped into a coma. She emerged from the coma after three days but died approximately two weeks later. Plaintiff entered into a written retainer agreement with defendants on July 23, 1997, which provided that plaintiff was retaining defendants to "prosecute or adjust a claim for damages arising from - personal injuries sustained by my deceased wife Hye Sook Kim[,] loss of services of, pain and suffering, wrongful death . . . on July 24, 1995 through the negligence of several possible defendants." Defendants contend that plaintiff also provided them with his wife's voluminous medical records on the same date that the retainer was signed. Plaintiff contends that he met with defendants three times, first in May 1997, then in late June 1997, when plaintiff claims he [*2]supplied defendants with the medical records, and finally on July 23, 1997 when the retainer agreement was entered into. All parties agree that the two year statute of limitations on plaintiff's wrongful death claim was set to expire on July 24, 1997, one day after defendants were formally retained. Defendants commenced the underlying medical malpractice action on November 13, 1997 by filing a summons and complaint in Supreme Court, Kings County. The complaint alleged causes of action for conscious pain and suffering, wrongful death, failure to obtain informed consent and negligence against Long Island College Hospital and several doctors. In their answer to the complaint, two of the underlying defendant doctors asserted the affirmative defense that plaintiff's wrongful death cause of action was time-barred under EPTL §5-4.1. At some point thereafter defendants ceased their representation of plaintiff, who retained William Weininger, Esq. to prosecute the underlying malpractice action. On May 4, 2001, the underlying medical malpractice action was settled for $200,000. Thereafter, in a decree dated October 14, 2004, the Kings County Surrogate's Court ordered, adjudged and decreed that plaintiff was "authorized to settle and compromise the action for the wrongful death of the Decedent for $200,000 to be paid by defendant Long Island College Hospital, and that all other actions against the defendants are discontinued with prejudice and without costs . . . ."

Defendants now move to dismiss plaintiff's complaint, which alleges that defendants committed legal malpractice by failing to timely file the wrongful death cause of action, on the grounds that (1) the underlying defendant hospital waived its statute of limitations defense by failing to prove it, and (2) that a cause of action for failure to timely institute a wrongful death suit is without merit when the statute of limitations defense is waived and when said waiver is done under the auspices of a settlement solely attributable to wrongful death.

In opposition, plaintiff contends that the $200,000 settlement was for plaintiff's wife's conscious pain and suffering, not for the wrongful death cause of action. According to Mr. Weininger's affirmation, he discussed with counsel for the underlying defendant hospital the fact that the statute of limitations had expired on the wrongful death claim. Mr. Weininger further avers that all parties to the underlying litigation agreed that the settlement was for the conscious pain and suffering claim, not the wrongful death claim. Plaintiff also speculates that the underlying defendant hospital, which was represented by a law firm that plaintiff contends specialized in medical malpractice, had no reason to settle and pay on an expired cause of action. Moreover, plaintiff argues that the Surrogate's Court decree, which Mr. Weininger submitted on plaintiff's behalf, erroneously states that the settlement was for the wrongful death claim. Plaintiff contends that the Surrogate's Court decree should have provided that the settlement was for the conscious pain and suffering cause of action. According to Mr. Weininger, the draft documents his office prepared for submission to the Surrogate's Court correctly stated that the wrongful death cause of action was time barred and that the underlying matter was being settled only as to the decedent's pain and suffering. Mr. Weininger, however, offers no explanation for the fact that the decree ultimately submitted to and signed by the Surrogate's Court, as well as the papers in support of that decree, including an Account of Proceedings signed by the plaintiff, stated the exact opposite, though plaintiff's current counsel speculates in his affirmation that the mistake was a result of law office failure on Mr. Weininger's part ^[FN1]. Plaintiff further contends that [*3]the underlying defendants properly raised the statute of limitations affirmative defense in their answer and thus never waived said defense. Finally, plaintiff argues that Mazzei v Pokorny, Schrenzel & Pokorny, 125 AD2d 374, 509 NYS2d 100 [2d Dept 1986] concerns the exact same legal issue as is presented here and is, therefore, controlling precedent. In Mazzei, the plaintiff retained the defendant law firm to prosecute several viable causes of action plaintiff had against the City of New York. To that end, the defendant law firm commenced an action on plaintiff's behalf. However, the defendant law firm allegedly failed to timely serve notices of claim with respect to all of plaintiff's viable causes of action. As a result, all of plaintiff's viable causes of action, with the exception of a malicious prosecution claim, were dismissed. Plaintiff Mazzei thereafter obtained new counsel, settled his malicious prosecution claim and gave the City of New York a general release. Plaintiff Mazzei then commenced a legal malpractice action against the defendant law firm. In affirming the trial court's denial of the defendant law firm's cross-motion for summary judgment, the Appellate Division held that the "general release which the plaintiff Mazzei executed upon settlement of the underlying action, does not preclude him from bringing the present action" (id. at 375).

Contrary to plaintiff's contention, the facts of Mazzei are clearly distinguishable from the facts at bar. Firstly, unlike the plaintiff in Mazzei, the instant plaintiff did not have his viable wrongful death cause of action dismissed as a result of the defendants' alleged failure to timely file the claim. While the court assumes that the underlying defendant hospital pleaded the statute of limitations as an affirmative defense in its answer ^[FN2], merely pleading the defense is not enough. As Professor Siegel points out, there are a number of matters, the statute of limitations affirmative defense being one of them, that are not the plaintiff's burden to prove as part of the cause of action "and are thus the defendant's burden to broach in the answer and sustain at trial, i.e., to plead and to prove" [NY Prac. § 223, at 368 [4th ed]). Here, there is no evidence that the underlying defendant hospital ever proved its statute of limitations affirmative defense through either a motion to dismiss plaintiff's wrongful death claim or a motion for summary judgment. In fact, Mr. Weininger specifically avers that the underlying defendant hospital had not yet filed a dispositive motion at the time the underlying action was settled. Secondly, this court is not being called upon to determine the effect a general release executed by a plaintiff in an underlying action would have on that plaintiff's ability to then prosecute a subsequent legal malpractice action. Rather, the court must determine what effect a Surrogate's Court decree should be given when that decree expressly and unambiguously authorizes a plaintiff to settle and compromise a wrongful death claim and the plaintiff commences an action alleging that his attorney committed malpractice by failing to timely file the very same wrongful death claim. It is this court's view that the Surrogate's Court decree remains in, and must be given, full force and effect. Just as the underlying defendant hospital never moved to dismiss plaintiff's wrongful death claim, there is no evidence that plaintiff ever moved to vacate and or in any way modify or amend the Surrogate's Court decree to reflect what plaintiff claims it should have reflected originally. Just as the integrity of our judicial system and the credibility of court orders demand [*4]that litigants not ignore said orders with impunity (Kihl v Pfeffer, 94 NY2d 118, 123, 722 NE2d 55, 700 NYS2d 87 [1999]), comity demands that this court not blindly ignore the decree of the Surrogate's Court.

Therefore, in light of the fact that plaintiff's wrongful death claim was never dismissed as being violative of the statute of limitations, and the fact that a valid Surrogate's Court decree authorizing plaintiff to settle and compromise the action for the wrongful death of plaintiff's wife remains in full force and effect, defendants' motion to dismiss plaintiff's complaint is granted.

This constitutes the decision and order of the Court.

Dated: January 22, 2007

George J. Silver, J.C.C.