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Gotay v. Breitbart1/27/2005
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
The underlying action, which alleged that plaintiff sustained injury during her birth in 1977 as a result of medical malpractice, was commenced in 1978 by a defunct law firm whose members were not made defendants herein. Defendants herein are law firms and their members whose first involvement with the underlying action was some 15 years after its commencement. While the instant motions to dismiss for failure to state a cause of action were sub judice, the underlying action was dismissed on the ground that "25 years of neglect in the prosecution of this action" had severely prejudiced the defendants therein.
The record reflects that defendant Breitbart's firm was substituted for the now defunct Kaufman & Siegel, P.C., in the representation of plaintiff in November 1993; the firm served a bill of particulars on the New York City Health and Hospitals Corporation (HHC) in January 1994. Defendant Handwerker, Honschke & Marchelos became the attorneys of record for plaintiff in July 1994; that firm forwarded authorizations for the release of records to Bronx Municipal Hospital Center and the Hospital for Joint Diseases in October 1995. In November 1995, Steve Marchelos sent payment for duplication of plaintiff's x-ray films to the Hospital for Joint Diseases.
In January 1999, some time after the Handwerker, Honschke & Marchelos firm was dissolved, defendant Michael Handwerker joined the Ross Suchoff firm, taking with him plaintiff's medical malpractice action. Reviewing the file at that time, defendant Hankin, a partner in Ross Suchoff, discovered that no index number had been purchased in the action, and the firm decided not to undertake representation of plaintiff. Hankin so advised plaintiff's father on January 28, 1999. He explained in a subsequent letter that in 1992 New York had begun requiring that an index number be purchased before papers were served upon a defendant and that since an index number had not been purchased and more than year had passed since the statute was enacted, plaintiff's claims "are now dismissed." Hankin concluded that, "based upon the passage of time, any attempt to purchase an index number now would be futile."
Plaintiff commenced the instant action in January 2002, alleging that defendant attorneys and law firms were negligent in failing to monitor the status of her medical malpractice action, misleading her and her parents into believing that there was a valid pending action when defendants knew or should have known that no index number had been purchased and the case had been dismissed, failing to advise plaintiff and her parents that Kaufman & Siegel had committed legal malpractice by neglecting to purchase an index number for the medical malpractice action, and failing to advise plaintiff and her parents of their right to bring a legal malpractice action against Kaufman & Siegel.
The complaint alleged that as a result of defendants' negligence, "the plaintiff has been prejudiced by the passage of time, in that the facts and circumstances surrounding the medical malpractice of 'The Hospital' have been obscured," and that defendants' negligence has "placed the plaintiff in a position where the plaintiff may not be able to fully explore and set forth acts of negligence of 'The Hospital.'"
Indeed, in dismissing the underlying action on the ground of 25 years of neglect in the prosecution thereof, the court noted that HHC claimed that "a thorough search of the records of the Law Department of the City o
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