In Amoia v Mandelbaum Barrett, P.C. 2025 NY Slip Op 30175(U) January 17, 2025 Supreme Court, New York County Docket Number: Index No. 150936/2024 Judge: Paul A. Goetz, a fairly common scenario is depicted. This oft-repeated trope is found in medical malpractice settings, especially when the need for an expert arises.
In medical malpractice claims, a Certificate of Merit is required, and that Certificate requires a physician to review the materials and assert that there is merit to the medical malpractice claim. This is much less involved and lesser than a CPLR 3101 expert. Many law firms seek to be relieved at the time that a CPLR 3101 trial expert is necessary, as they may not find one, or don’t wish to pay the expense.
Here, the law firm filed the case and then told the client that they would not serve the complaint, nor find a physician to make the Certificate of Merit. Who, then, is at risk?
“Plaintiff, Kristen Amoia retained defendant law firm, Mandelbaum Barrett, P.C. (the
“firm”) to represent her following the death of her husband, Patrick Amoia on May 1, 2020. Defendant claims that the firm was unable to obtain expert support for plaintiff’s claims of wrongful death and medical malpractice and concluded there was no reasonable basis to commence the action. Defendant did however, file the action on plaintiff’s behalf to protect her interests while she sought new counsel (Kristen Amoia v. Good Samaritan Hospital Medical Center et al., Index No 616626/2022, Suffolk County Supreme Court) [the “Underlying Action”]. On August, 23, 2022 defendant informed plaintiff that it would not be taking any further actions in the case and informed her to notify her new counsel, about the time frame toserve the complaint (NYSCEF Doc No 12).
As of at least January 6, 2023, Plaintiff was represented by her attorney in this action, in the underlying action. Plaintiff’s present attorney served the defendants in the underlying action on April 18, 2023 (Index No 616626/2022; NYSCEF Doc Nos 3 – 17). The defendants in the underlying action moved to dismiss based on lack of personal jurisdiction, and the court granted the unopposed motions (Index No 616626/2022; NYSCEF Doc Nos 53 – 55). Plaintiff’s current counsel then moved to vacate the dismissals but the motion was denied on September 11, 2023 (NYSCEF Doc No 93).”
“Plaintiff’s second theory is that defendant was negligent by failing to serve the
defendants in the underlying action with the pleadings within 120 days after filing as required by CPLR § 306-b. Defendant argues that immediately upon commencing the action, plaintiff was informed that defendant would be terminating its representation of plaintiff and that it would not be serving the underlying action defendants.
Defendant submits an e-mail sent to the firm by plaintiff on August 18, 2022 where she stated that she was working with new counsel who wanted to commence the action the next day (NYSCEF Doc No 11). Defendant also submits an email sent by firm partner, Michael F. Bevacqua Jr. to plaintiff on August 23, 2022 (NYSCEF Doc No 12). In that e-mail Bevacqua states that after consulting with a physician, defendant he believed that he “could not provide the attestation that I believe there is a reasonable basis for the commencement of the action, as required under CPLR 3012-a(1)” and thus would be terminating the firm’s representation of plaintiff (id.). He goes on to state that defendant filed the complaint as a courtesy to plaintiff in order to preserve her claims, but the firm “will not be serving the Complaint upon the defendants, filing a Certificate of Merit, or performing any further services of any kind or nature for [plaintiff]” (id.). Plaintiff does not dispute the authenticity of these emails.
Defendant also notes that the three motions in the underlying action which dismissed the claims against all the underlying defendants because they were not served, and the court lacked personal jurisdiction over them, were unopposed by plaintiff’s new counsel (NYSCEF Doc Nos 15 – 17). Nor did plaintiff’s new attorney make any effort to serve the underlying defendants, or move for an extension in time to effectuate service. Further, after plaintiff’s new counsel made a motion to vacate the dismissals, he failed to present the argument that the statute of limitations had been tolled, and therefore the wrongful death claim was not time-barred. The court in the underlying action ultimately denied the motion to vacate because plaintiff’s counsel was “unable to demonstrate that the action is meritorious” (NYSCEF Doc No 18). Therefore, “the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively
establishing a defense as a matter of law” (Phillips, 152 AD3d at 806).”