Victoria Kremen suffered unnecessary bilateral mastectomomy, and then legal malpractice, and then bankruptcy, Law.com reports:
"A New York state judge has permitted a legal malpractice suit to proceed against plaintiffs lawyers who allegedly failed to seek a bankruptcy extension for their client, causing her medical malpractice case to be thrown out as untimely.
The article does not make this clear: why legal malpractice? A medical malpractice case was brought 1 month after retaining Benedict Morelli’s law firm, and took place during/around the bankruptcy. Is the legal malpractice for allowing the case to be dismissed?
In denying a motion to dismiss the action against law firms Morelli Ratner and Schapiro & Reich, Manhattan Supreme Court Justice Emily Jane Goodman said a combination of equitable estoppel and the U.S. Bankruptcy Code’s tolling of statutes of limitations might have saved the underlying lawsuit, even though the medical malpractice at issue took place over a decade ago. "
"The statute of limitations for medical malpractice cases in New York is 2 1/2 years following the malpractice. The trial court dismissed the suit as untimely and rejected the plaintiff’s argument that the misdiagnosis had been fraudulently concealed from her. The Appellate Division, 1st Department, upheld the ruling in 2005, finding that Kremen’s 25-month delay in bringing an action even after learning of the alleged malpractice in 1999 was "unreasonable as a matter of law."
But Justice Goodman, in Kremen v. Morelli & Associates, 101739/06, said the delay may not have been unreasonable in light of §108 (a) of the Bankruptcy Code, which grants debtors an additional two years to file claims that "applicable nonbankruptcy" laws would otherwise require them to file in the midst of bankruptcy.
The judge said New York’s laws on the tolling of statute of limitations law constituted the type of non-bankruptcy law contemplated in the Bankruptcy Code. "
We’ll report the case when it is published.