In this legal malpractice action, flowing from Victoria Kremen's bi-lateral mastectomy, which she claims was the result of a mis-diagnosis, Victoria Kremen (Kremen) and her husband Boris Kremen (the Plaintiffs) seek a judgment against Benedict P. Morelli & Associates, P.C. a/k/a Morelli Ratner, P.C., Benedict P. Morelli, Esq. and David S. Ratner, Esq. (collectively, the Morelli Defendants), as well as Schapiro & Reich, Esqs. and Perry S. Reich, Esq. (collectively, the Reich Defendants), for negligently prosecuting a medical malpractice action on Plaintiffs' behalf.

In March 2006, the Morelli Defendants filed a motion to dismiss the complaint (the Prior Motion). On October 23, 2006, this court issued an interim order directing the parties to provide briefing on the issue of the bankruptcy extension. After reviewing the briefs and hearing oral arguments, on April 27, 2007 this court issued a decision and order denying the Prior Motion of the Morelli Defendants (the Prior Decision).

On or about February 26, 2007, Plaintiffs amended the complaint to add Jennie L. Shatynski, Esq., an associate who works for the Morelli Defendants (Shatynski), as a defendant to this malpractice action (the Amended Complaint). The Amended Complaint was purportedly served on Shatynski, the Morelli Defendants and the Reich Defendants.^[FN1] On March 26, 2007, but prior to the issuance of the Prior Decision, the Morelli Defendants and Shatynski filed a motion to dismiss the Amended Complaint (the New Motion). The arguments stated in the New Motion in support of dismissal of the Amended Complaint include: (i) Boris Kremen's loss of [*2]consortium claim is time barred; (ii) the Plaintiffs do not have standing to invoke the bankruptcy extension that is only available to a bankruptcy trustee under section 108 (a) of the Bankruptcy Code; (iii) 11 USC § 108 (a) cannot be triggered by equitable estoppel; (iv) the Plaintiffs failed to sufficiently plead fraudulent concealment; and (v) the Plaintiffs' claims are barred by collateral estoppel.

For the reasons stated herein, the New Motion is denied. Most of the arguments merely rehash arguments already addressed and rejected by the Prior Decision, or, are not properly the subject of a motion to dismiss. For instance, Defendants ^[FN2] argue "[T]o justify equitable estoppel Plaintiffs were required to provide some evidence of a misrepresentation by Dr. Kaiser subsequent to the alleged malpractice ... There is no evidence in the record regarding misrepresentations by Dr. Kaiser subsequent to Ms. Kremen's post-surgery treatment ... ." New Motion, ¶ 35.^[FN3] Defendants also argue that based on the documents filed in the instant action and the medical malpractice action, "there is no question that Ms. Kremen's underlying [medical malpractice] claim had no merit and that she was not entitled to equitable estoppel in her underlying action." Id. at ¶ 41-42. In essence, the Defendants would like the instant malpractice action dismissed 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." New Motion, ¶ 42.

As Defendants correctly note, dismissal is appropriate under CLPR 3211 (a) (1) when the documentary evidence submitted conclusively establishes a defense as a matter of law (see 150 Broadway New York Assoc., LLP v Bodner, 14 AD3d 1 [1st Dept 2004]). Arguments concerning the weaknesses, if any, of Plaintiffs' medical malpractice action are not "conclusive" evidence that the Plaintiffs would have lost that case and therefore, not proper grounds for a motion to dismiss. Moreover, such 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.

The facts relevant to the medical malpractice action and the instant legal malpractice action were discussed in detail in the Prior Decision. The legal issue at the crux of this action is whether the Defendants have demonstrated, as a matter of law, that even if they had raised in the medical malpractice action the two-year extension provided under section 108 (a) of the Bankruptcy Code, the medical malpractice action would still have been time barred. In the Prior Decision this court concluded that "Defendants have not met their burden to show that their failure to assert the bankruptcy tolling of the statute of limitations in the medical malpractice action could not have, as a matter of law, deprived Plaintiffs of a judgment in their favor [in such action]." Prior Decision, page 15.

In the Amended Complaint, Plaintiffs assert that the Reich Defendants perfected the appeal on or about November 1, 2004 "in the name of VICTORIA KREMEN a/k/a VICTORIA RABINOFF', as the sole appellant, [but] omitting the cause of action of plaintiff BORIS KREMEN." Amended Complaint, ¶ 43. This assertion is directed only at the Reich Defendants. Moreover, in the underlying medical malpractice action brought by the trustee on behalf of Kremen's bankruptcy estate, Defendants did include a loss of consortium claim for Boris Kremen. Thus, as the claim is not applicable to Defendants, the court will not address such claim, until raised by the Reich Defendants.

Defendants contend that Kremen did not have standing to invoke the bankruptcy extension because only the trustee had standing to prosecute the medical malpractice action. Although the trustee did originally prosecute the medical malpractice action, the claim was later abandoned to Kremen, based Defendants' legal advice. This argument was raised and rejected in footnote 1 of the Prior Decision, and there is no reason to revist it. Further, although Defendants now notes that "the fundamental purpose of the Bankruptcy Code is to provide debtors with a fresh start and equitably distribute the debtors assets among the debtor's creditors," they have not demonstrated, as a matter of law, that Kremen would not have been entitled to a surplus after satisfying her creditor claims. Nor have they addressed the fact that it was Defendants who requested the trustee to abandon the claim to Kremen, an act which Defendants now maintain renders Plaintiffs medical malpractice claim worthless.

Defendants argue that equitable estoppel cannot toll the statute of limitations because "[u]nlike equitable tolling, which usually suspends the running of the statute, equitable estoppel operates to preclude the defendant from asserting the statute of limitations as a defense." New Motion, ¶ 31, quoting, Ainbinder v Kelleher, 1997 WL 420279, at * 8 (SD NY 1997), affd 152 F3d 917 (2d Cir 1998).

The court need not address this issue because the action against Dr. Kaiser was based upon the principle of fraudulent concealment. New Motion, ¶ 10 ("The basis for fraudulent concealment in the Morelli Defendant's opposition to the medical malpractice defendants' motion for summary judgment was that ... ."). Indeed, the appellate court in the underlying medical malpractice action stated that Kremen's allegation of fraudulent concealment against Dr. Kaiser might be sufficient to raise an issue of fact that could preclude a summary judgment in favor of Dr. Kaiser, but that action was time barred because Kremen failed to commence the action within a reasonable time after she discovered the alleged concealment. See Kremen v Brower, 16 AD3d 156, 157-158 [1st Dept 2005]).

In the New Motion, the Defendants argue that "equitable estoppel through fraudulent concealment must be pleaded with particularity," and that entitlement to equitable estoppel is a "condition precedent" to Plaintiffs' recovery in the medical malpractice action and the legal malpractice action. New Motion, ¶ 34. Further, the Defendants argue that because Plaintiffs failed to assert or plead equitable estoppel and fraudulent concealment with sufficient particularity, their complaint should be dismissed. Id. at ¶¶ 38-27 (sic).

Defendants' argument is convoluted, difficult to comprehend and is otherwise without merit. First, Defendants' argument that entitlement to equitable estoppel is a "condition [*4]precedent" in the medical malpractice action is flawed. In Harkin v Culleton (156 AD2d 19, 23 [1st Dept 1990]) - the case relied upon by the appellate court in Kremen v Brower (supra) - it was explained that "if the reasonable period of time [to commence a malpractice action] extends beyond the statutory period, then the action is timely if commenced within the reasonable period, and it should make no difference whether the facts giving rise to the estoppel ceased to be operational before the expiration of the statutory period." (Emphasis added). Thus, the critical inquiry is whether the plaintiff commenced the action within a reasonable period of time after the estoppel ceased to be operational, not whether plaintiff was entitled to equitable estoppel. More importantly, Defendants do not cite any law in support of their novel contention that Plaintiffs must also establish entitlement to equitable estoppel as a condition precedent to any recovery under the instant legal malpractice action.

Defendants have also invented a novel claim - fraudulent estoppel - and argue that Plaintiffs must meet the "more rigorous pleading standard" to support such claim. New Motion, ¶ 38. If it is Defendants' contention that Plaintiffs had failed to properly plead their claims in that action, it was the responsibility of Defendants, as Plaintiffs' counsel, to sufficiently plead and argue such claims. In any event, that issue was never raised in the medical malpractice action, and this court cannot say, as a matter of law, that Defendants have demonstrated that any such failure would have resulted in the dismissal of the medical malpractice action.

Defendants contend that Plaintiffs' legal malpractice action is barred by collateral estoppel because the issue of Dr. Kaiser's fraudulent concealment was already decided and rejected by the trial judge in the underlying medical malpractice action. Defendants point out that the trial judge already determined that Kremen's deposition testimony (that Dr. Kaiser told her she had breast cancer and strongly recommended a bilateral mastectomy) was contradicted and uncorroborated and therefore, insufficient to raise an issue of fact regarding fraudulent concealment. However, as Defendants acknowledge, the First Department apparently questioned that finding when it stated "while plaintiff's deposition testimony that Dr. Kaiser told her that she had breast cancer and then concealed that misdiagnosis after receiving negative pathology reports may be sufficient to raise an issue of fact as to fraudulent concealment, plaintiff failed to commence the action within a reasonable time after the estoppel ceased to be operational." See Kremen v Brower, 16 AD3d 156, 157-158 [1st Dept 2005]). Nonetheless, Defendants maintain, without citation, that unless this language is understood as having reversed the trial court on this issue, Plaintiffs are collaterally estopped from raising fraudulent concealment in this legal malpractice action.

This argument is incorrect. In a recent legal malpractice action the First Department declined to give preclusive effect to a Surrogate Court's order, where the appellate court affirmed the Surrogate Court's denial of a plaintiff's motion to dismiss (based on expiration of the statute of limitations), on different grounds. See Tydings v Greenfield, Stein & Senior, LLP, 2007 NY Slip Op 06734 [September 13, 2007]). In holding that collateral estoppel does not apply where reasoning used by the lower court is not squarely addressed or decided by the appellate court, the First Department further noted that "different considerations come into play where the trial court's ruling , for which preclusive effect is sought is purely one of law . . . especially when that reasoning was, at least implicitly, disturbed on appeal." (id.). Here, at a minimum, the First Department implicitly questioned (if not rejected) the finding of the trial court regarding Dr. [*5]Kaiser's alleged fraudulent concealment. In any event, even where the lower court finding is not questioned by the appellate court, collateral estoppel would not apply under the circumstances alleged here (id.).

It is hereby

ORDERED that Defendants' motion to dismiss the Amended Complaint is denied.

This constitutes the Decision and Order of the Court.

Dated: October 9, 2007

ENTER:

___________________

J.S.C.