Supreme Court, Bronx County, March 11, 2021

Kaufman Borgeest & Ryan, LLP, Garden City (Betty L. Atlas of counsel), for defendants.

Wolf & Fuhrman, LLP, Bronx (Carole R. Moskowitz of counsel), for plaintiff.

The decision/order on this motion is decided as follows:

The instant medical malpractice action, which commenced on March 3, 2020, alleges, in sum and substance, that defendants failed to diagnose plaintiff's lung cancer on May 16, 2014, and [*2]that plaintiff first discovered this failure on October 7, 2019, and further alleges a claim for lack of informed consent that is predicated upon the May 16, 2014 failure to diagnose. Arguing that plaintiff failed to commence this action within 21/2 years of the alleged malpractice (CPLR 214-a), defendants move by notice of motion for dismissal of this action as being time-barred. (CPLR 3211 [a] [5].) Defendants further argue that the action cannot be saved by the 2018 amendment to the medical malpractice statute of limitations because plaintiff's claim expired outside the period for retroactive application of said amendment. (CPLR 214-a [b] [i].) The statute of limitations for a medical malpractice action is 21/2 years from the alleged malpractice. (CPLR 214-a; B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 30 NY3d 608 [2017].) The 2018 amendment, which became effective January 31, 2018, addresses those instances in which discovery of a cancerous condition occurs more than 21/2 years from the alleged malpractice (i.e., failure to diagnose), and where there has been no tolling of the statute due to continuous treatment, thereby leaving the patient with no recourse. (L 2018, ch 1.) A plaintiff now has 21/2 years from (i) the date when he/she knows or reasonably should know that there is an injury and that the malpractice caused said injury (provided that the action must be commenced within seven years of the malpractice), or (ii) the end of the continuous treatment, whichever provides the greater amount of time.

There is no dispute amongst the parties that the alleged malpractice date of May 16, 2014, is well beyond the 21/2 years provided for under CPLR 214-a, and there was no tolling due{**71 Misc 3d at 691} to continuous treatment. However, as for the 2018 amendment, defendants argue that the new discovery rule (CPLR 214-a [b] [i]) is retroactive only to claims involving acts or omissions occurring as far back as July 31, 2015. There are few reported cases addressing the 2018 amendment to CPLR 214-a. Notwithstanding, defendants refer to two reported Supreme Court decisions, Edwards v Zung (2019 NY Slip Op 34120[U] [Sup Ct, Bronx County 2019]) and Kelly v Baldwin (2019 NY Slip Op 34121[U] [Sup Ct, Kings County 2019]), which they believe support their position. In Edwards, the action commenced August 24, 2018, and "the alleged misdiagnoses by defendant [occurred] on July 19, 2013." (2019 NY Slip Op 34120[U], *2.) Although the decision does not state the date of discovery, the action was dismissed on the finding that "the new discovery rule is retroactive only to claims involving acts or omissions occurring as far back as July 31, 2015." (Id. at *3.) The Kelly action commenced June 8, 2018, and plaintiff last saw defendant doctor on December 3, 2013, but it was not until November 15, 2017, that she learned of the failure to diagnose. Finding the action time-barred, the court in Kelly held that "the new discovery rule is retroactive only to claims involving acts or omissions occurring as far back as July 31, 2015 . . . [and] [h]ere, Plaintiff last saw Defendant on December 3, 2013, which is before the July 31, 2015 date for retroactive cancer diagnosis cases." (2019 NY Slip Op 34121[U], *3.) Alleging that the instant matter is factually analogous to the aforementioned cases, defendants argue that this action is time-barred as the alleged malpractice occurred before the July 31, 2015 date for retroactive diagnosis cases.

In opposition, plaintiff argues that the statute of limitations does not bar commencement of her action since the 21/2 years was amended effective January 31, 2018, to run from the discovery date. According to plaintiff, defendants are ignoring the clear statutory language and legislative intent of CPLR 214-a (b) (i) that an action may be commenced within 21/2 years of the discovery date, provided that such action shall be commenced no later than seven years from the alleged negligent act. (Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 [2019]; Bright Homes v Wright, 8 NY2d 157 [1960].) Plaintiff also argues that the reported cases cited by defendants are distinguishable in [*3]that they focused exclusively on the malpractice date, and did not involve a discovery date after the amendment's effective date of January{**71 Misc 3d at 692} 31, 2018.^[FN1] This court is in agreement with plaintiff that the cases cited by defendants are distinguishable. In addition, the 2018 discovery amendment, which became effective January 31, 2018, applies to "acts, omissions, or failures^[FN2] occurring within 2 years and 6 months prior to the effective date." (L 2018, ch 1, §§ 5-6 [emphasis added].) In other words, it may be applied retroactively where the failure to diagnose occurred no later than July 31, 2015 (i.e., 21/2 years before the amendment's effective date). Therefore, the retroactive application of the 2018 amendment only comes into play when the alleged malpractice occurs before the amendment's effective date of January 31, 2018, but no later than July 31, 2015. The date the malpractice is discovered does not trigger any retroactive application. But there is no need to employ the 2018 amendment's retroactive impact where, as is the case here, the malpractice is discovered after the amendment's effective date of January 31, 2018. A plain reading of the amendment appears to make it clear that starting January 31, 2018, a patient who first learns of an injury caused by his/her physician's malpractice will have 21/2 years from this discovery date to commence an action. Of course, where the discovery date is used, the amendment makes it clear that the action must be commenced within seven years of the actual malpractice. This plain reading also serves the dual purpose of addressing the legislature's concern with patients who discover a cancerous condition more than 21/2 years after the alleged malpractice, and where there has been no tolling of the statute due to continuous treatment. Here, plaintiff discovered the malpractice on October 7, 2019, after the 2018 amendment's effective date of January 31, 2018, and commenced this action on March 3, 2020, which is less than six years from the alleged malpractice date of May 16, 2014. As such, this action is not time-barred, and defendants' motion is denied.