Throughout this Blog over the years, I have explained the many legal benefits of alleging fraudulent conduct in connection with formulating and articulating causes of action and claims for relief. For example, alleging significant fraudulent conduct has a special impact on the statute of limitations, not only for the cause of action of actual fraud, but for other claims as well. See, e.g., Actual Fraud Extends Statute of Limitations for Breach of Fiduciary Duty Claims.
Equitable Estoppel
One of these benefits is known as “equitable estoppel.” If a party is duped into refraining from instituting a lawsuit based upon fraudulent conduct of the alleged wrongdoer, thereby letting the applicable statute of limitations lapse before bringing suit, “equitable estoppel” will prevent the wrongdoer from taking advantage of the statutory deadline for suing.
The courts are quite strict, however, in assessing whether the elements of equitable estoppel have been met. Parties often try to avoid their own unjustified delay in bringing suit by claiming the defendant was the culprit through some sort of fraudulent or deceptive conduct. But courts hone in on what the defendant is alleged to have done and how that in fact may have caused the plaintiff to refrain from suing earlier.
I have written plenty on equitable estoppel. See e.g., Search Results “Equitable Estoppel.”
These issues often come up in medical malpractice lawsuits where the patient seeking to assert the claim has not brought suit within the rather short limitations period and seeks to blame the health provider for causing the delay by misleading the patient or concealing what was done, or otherwise mistreating the underlying medical condition. Patients often fail in this quest. See, e.g., Fraud Allegations Affecting Medical Malpractice Claims.
Just last month, I reviewed the First Department’s recent decision in Borek v Seidman, 2024 NY Slip Op 04898 (1st Dep’t Decided Oct. 8, 2024), where the Court rejected equitable estoppel in sustaining the dismissal of untimely medical malpractice claims. See Trifecta of New Decisions Provides Current Authority on Statute of Limitations Principles. While I have reported on a host of cases decided by the Appellate Division, First and Second Departments, this month, the Third Department has added to the mix in rejecting equitable estoppel in an attempt to extend the statute on a dental malpractice claim, in Ferrara-Carpenter v Ormsby, 2024 NY Slip Op 06092 (3d Dep’t Decided Dec. 5, 2024).
Ormsby
In Ormsby, plaintiff began treatment with defendant, a dentist, and the defendant dental practice, in April 2008, for the placement of veneers. Plaintiff was last seen by defendants on November 1, 2011. Thereafter, on March 7, 2016, plaintiff and her spouse commenced action alleging, among other claims, dental malpractice arising out of the alleged improper placement and replacement of several veneers. Defendants asserted the statute of limitations as an affirmative defense. Following discovery, defendants moved for summary judgment dismissing the allegations of malpractice as time-barred. The lower court granted defendants’ motions, plaintiffs appealed, and the Third Department affirmed.
The Third Department began by explaining the statute of limitations applicable to the claims, and finding that defendants had shown that the case was not instituted within the required timeframe, so plaintiffs had the burden of establishing some recognized justification to extend the period to bring suit:
“An action for . . . dental . . . malpractice must be commenced within [2½ years] . . . of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a; see Rich v Lavelle, 216 AD3d 1323, 1324 [3d Dept 2023]). It is undisputed that the last time Ferrara-Carpenter was seen by defendants was November 1, 2011; as such, barring a tolling of the statute, the 2½-year dental malpractice statute expired on May 1, 2014. Here, the summons was not filed until March 7, 2016, rendering the action time-barred. [footnote omitted] Defendants met their prima facie burden by demonstrating that the applicable statute of limitations had expired. The burden then shifted to plaintiffs to demonstrate that the statute was in fact tolled by way of the continuous treatment doctrine (see Shultis v Patel, 163 AD3d 1342, 1342-1343 [3d Dept 2018]; Boyle v Fox, 51 AD3d 1243, 1243-1244 [3d Dept 2008], lv denied 11 NY3d 701 [2008]; Cellupica v Bruce, 48 AD3d 1020, 1021 [3d Dept 2008]).
After rejecting the continuous treatment argument, the Third Department then found that plaintiffs had not properly alleged a basis for equitable estoppel either:
Plaintiffs next contend that the doctrine of equitable estoppel precludes defendants from asserting the statute of limitations defense. “Equitable estoppel is an extraordinary remedy which applies where a party is prevented from filing an action within the applicable statute of limitations due to his or her reasonable reliance on deception, fraud or misrepresentations by the other. It is therefore fundamental to the application of equitable estoppel for plaintiffs to establish that subsequent and specific actions by defendants somehow kept them from timely bringing suit” (Pulver v Dougherty, 58 AD3d 978, 979-980 [3d Dept 2009] [internal quotation marks, brackets and citations omitted]; see Kosowsky v Willard Mtn., Inc., 90 AD3d 1127, 1130 [3d Dept 2011]). Plaintiffs initially allege that defendants failed to timely forward Ferrara-Carpenter’s medical records to her new doctor, and that this action by defendants thwarted her ability to file suit. However, plaintiffs did not seek the medical records until after the statute of limitations had expired. Thus, this did not prevent them from timely filing the action. Additionally, plaintiffs allege that because defendant dentist advised her that her pain and sensitivity would eventually subside, she was somehow seduced into not filing suit. However, this statement is also legally insufficient to support a finding that defendants intentionally concealed an act of dental malpractice and knowingly misrepresented the condition of Ferrara-Carpenter’s teeth (see Dombroski v Samaritan Hosp., 47 AD3d 80, 83 [3d Dept 2007]; Contento v Cortland Mem. Hosp., 237 AD2d 725, 726 [3d Dept 1997], lv denied 90 NY2d 802 [1997]). Moreover, throughout the period Ferrara-Carpenter alleges that defendants made this prediction, she did not sit idly by waiting for her pain to subside. Rather, she took affirmative steps to resolve her issues by treating with other dental professionals. Accordingly, Supreme Court properly found that defendants were not estopped from asserting that plaintiffs’ claims were time-barred (see Cellupica v Bruce, 48 AD3d at 1022; Contento v Cortland Mem. Hosp., 237 AD2d at 726; Roosa v Frankel, 166 AD2d 569, 569[*3][2d Dept 1990]).
Commentary
While the doctrine of equitable estoppel can prevent a defendant from obtaining the dismissal of claims that were not brought within the applicable statute of limitations, courts will focus specifically on what the defendants have allegedly done to cause the plaintiff to have delayed bringing suit. As in Ormsby, simply alleging a host of alleged wrongful or deceptive acts is insufficient to establish the causal nexus between the alleged acts and the decision to refrain from bringing suit earlier.
The bottom line, of course, is that anyone who has been injured or sustained damage, whether in a commercial business or personal setting, must seek legal advice in the timeliest manner lest the claim will be barred as untimely.