The following papers numbered 1 to 3 read on this motion, noticed on June 25, 2020, and duly submitted September 4, 2020. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS AND EXHIBITS 1 ANSWERING AFFIDAVIT AND EXHIBITS 2 REPLY AFFIDAVIT AND EXHIBITS 3 UPON THE FOREGOING CITED PAPERS, 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, 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 2 ½ 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 2 1/2 years from the alleged malpractice (CPLR 214-a; B.F. v. Reproductive, 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 2 1/2 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. (Laws of 2018, ch. 1.) A plaintiff now has 2 ½ 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 7 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 2 1/2 years provided for under CPLR 214-a, and there was no tolling due 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 WL 3536445 [Sup Ct, Bronx Cty]) and Kelly v. Baldwin (2019 WL 1878122 [Sup Ct, Kings Cty]), 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.” 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.” 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] Here, Plaintiff last saw Defendant on December 3, 2013, which is before the July 31, 2015 [sic] date for retroactive cancer diagnosis cases.” 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 2 1/2 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 2 1/2 years of the discovery date, provided that such action shall be commenced no later than 7 years from the alleged negligent act. (Nadkos v. Preferred, 34 NY3d 1 [2019]; Homes v. Wright, 8 NY2d 157 [1960].) Plaintiff also argues that the reported cases cited by defendants are distinguishable in that they focused exclusively on the malpractice date, and did not involve a discovery date after the amendment’s effective date of January 31, 2018.1 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 (emphasis added)2 occurring within 2 1/2 years prior to the effective date.” (Laws of 2018, ch. 1, §§5-6.) In other words, it may be applied retroactively where the failure to diagnose (emphasis added) occurred no later than July 31, 2015 (i.e., 2 1/2 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 2 1/2 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 7 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 2 1/2 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 6 years from the alleged malpractice date of May 16, 2014. As such, this action is not time barred, and defendants’ motion is denied. Plaintiff is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: March 11, 2021
