Pahlad v. Brustman

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about October 21, 2004, which granted defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint, affirmed, without costs. This action arises out of the birth of the infant plaintiff, Jenna Lynn Fahlad, on September 25, 2000, suffering from Cornelia [519] de Lange syndrome, which, in this case, was manifested by the absence of upper extremities. Plaintiffs commenced the within action by the service of a summons and verified complaint, dated November 5, 2003, asserting, inter alia, that defendants negligently interpreted an obstetrical ultrasonogram, which had been performed on June 1, 2000, and as the result of which, plaintiff Sharmila Pahlad carried the pregnancy to full term. Plaintiffs maintain that, had she been correctly advised of the fetus’s condition, she would have lawfully terminated the pregnancy prior to her third trimester. Defendants thereafter moved, inter alia, to dismiss the complaint, pursuant to CPLR 3211 (a) (5) and (7), on the ground that it was barred by the applicable statute of limitations (CPLR 214-a). The motion court granted defendants’ motion, holding that the causes of action asserted on behalf of the infant are not cognizable in the State of New York, that the causes of action asserted on behalf of the infant plaintiff’s parent should be dismissed as time-barred because the action was not commenced within 2V2 years of the infant plaintiff’s birth, and that the facts of this case do not warrant tolling the applicable limitations period. Plaintiffs appeal and we now affirm. We agree with the dissent that a cause of action for wrongful life accrues at the time of the infant plaintiffs birth (Cicerón v Jamaica Hosp., 264 AD2d 497, 498 [1999]) and that the 2V2-year limitations period embodied in CPLR 214-a governs this matter. We cannot agree, however, with the dissent’s determination that plaintiffs’ “assertions and submissions” create an issue of fact as to whether the doctrine of equitable estoppel lies so as to toll the statute of limitations. The doctrine of equitable estoppel is an “extraordinary remedy” (East Midtown Plaza Hous. Co. v City of New York, 218 AD2d 628, 628 [1995]) which may bar a defendant from asserting the statute of limitations when the plaintiff “was induced by fraud, misrepresentations or deception to refrain from filing a timely action” (Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; Kaufman v Cohen, 307 AD2d 113, 122 [2003]). In General Stencils v Chiappa (18 NY2d 125, 128 [1966]), the Court of Appeals opined that: “[o]ur courts have long had the power, both at law and equity, to bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant’s affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding” (emphasis added). Moreover, the plaintiff must demonstrate reasonable reliance on the defendant’s misrepresentations (Zumpano v Quinn, 6 [520] NY3d 666, 674 [2006]; Simcuski, 44 NY2d at 449), and due diligence on the part of the plaintiff in ascertaining the facts, and in commencing the action, is an essential element when plaintiff seeks the shelter of this doctrine (id. at 450; Putter v North Shore Univ. Hosp., 25 AD3d 539, 541 [2006]). In this matter, the infant plaintiff was born on September 25, 2000 and plaintiffs, approximately nine months later, by letter dated June 1, 2001, made their first request for the infant plaintiff’s medical records from Dr. Renuka Paka, who had ordered the prenatal obstetrical sonogram of the infant plaintiff. Dr. Paka promptly responded to the request on June 27, 2001, at which time she provided her record, including a report from the June 1, 2000 sonogram which indicated that the development of all four limbs was “normal.” Plaintiffs thereafter made a second request for the infant plaintiff’s medical records from defendant Saint Luke’s-Roosevelt Hospital Center (St. Luke’s) in August 2001, and on October 12, 2001, St. Luke’s forwarded to plaintiffs a copy of each plaintiff’s hospital chart, including the aforementioned obstetrical sonogram report, which again indicated the presence of four normal limbs. There is no dispute that neither Dr. Paka, nor St. Luke’s, in response to the first two requests, provided plaintiffs with the actual sonogram films, which plaintiffs now describe in various documents and letters as, among other things, “critical” and “crucial” to their case. Yet, despite the purportedly decisive nature of these films, and the acute importance to their case, plaintiffs made absolutely no further effort to obtain the films until March 11, 2003, 19 months after their last request for records, 17 months after St. Luke’s responded to plaintiffs’ August 2001 inquiry, and just two weeks prior to the expiration of the statute of limitations. In light of the foregoing undisputed sequence of events, it is clear that plaintiffs’ efforts, or lack thereof, to ascertain the facts cannot be viewed, even under the most liberal interpretation, as comprising due diligence, an essential element of equitable estoppel. The “dogged persistence” of plaintiffs’ counsel, of which the dissent speaks, apparently occurred just days prior to, and then after, the expiration of the limitations period. We further disagree with the dissent’s conclusion that plaintiffs lacked a good faith basis to have commenced this action on the eve of the expiration of the statute of limitations, without a certificate of merit, pursuant to CPLR 3012-a. Indeed, with the exception of the sonogram films themselves, plaintiffs were in possession of all the relevant medical records and the fact that none of these records indicated a problem with the [521] pregnancy, coupled with the sonogram report, which plaintiffs received on two separate occasions, that affirmatively stated that no problem existed of the type infant plaintiff suffers, should certainly have placed plaintiffs on notice that something was amiss and, in our view, is more than sufficient to constitute a good faith basis to have timely brought this action without a certificate of merit. Finally, the motion court properly concluded that New York law, not the law of Florida, plaintiffs’ after-acquired domicile, governed the claim for wrongful life. The injury occurred, and the claim accrued, at the moment the infant plaintiff was born, and plaintiffs continued to live in New York for the next two years. Thus, at the time the cause of action accrued, all parties were New York domiciliaries and New York was the locus of the tort. No basis exists for application of any other state’s law, since all the relevant contacts were here, and only New York’s interests were implicated. Moreover, the motion court correctly found that a cause of action, on behalf of an infant plaintiff, may not be maintained for wrongful life (Sheppard-Mobley v King, 4 NY3d 627, 638 [2005]; Alquijay v St. Luke’s-Roosevelt Hosp. Ctr., 63 NY2d 978, 979 [1984]). We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Tom, J.E, Nardelli and Williams, JJ.