Lafferty v. Avila

Lafferty v Avila

2026 NY Slip Op 05147 August 27, 2026 Appellate Division, First Department Higgitt, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Joseph Lafferty etc., et al, Plaintiffs-Appellants,

v

Edward K. Avila MD et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Judicial Department

Decided and Entered: August 27, 2026

Index No. 805399/22|Appeal No. 6804|Case No. 2025-04504|

Saliann Scarpulla

Martin Shulman John R. Higgitt Kelly O'Neill Levy Margaret A. Chan

Pollack, Pollack, Isaac & DeCicco LLP, New York (Brian J. Isaac of counsel), and Friedman Friedman & Chiaravalloti, New York (Mariangela Chiaravalloti of counsel), for appellants.

Dopf, P.C., New York (Martin B. Adams of counsel), for respondents.

Plaintiffs appeal from the order of Supreme Court, New York County (Kathy J. King, J.), entered on or about June 12, 2025, which, to the extent appealed from as limited by the briefs, granted so much of defendants' motion for summary judgment as sought to dismiss the causes of action for conscious pain and suffering as barred by the statute of limitations.

Higgitt, J. [*1]

On this appeal, we are asked to determine whether a physician's alleged negligence in recording inaccurate information about a patient's medical condition on a New York State Department of Motor Vehicles form, used to evaluate whether the patient's driver's license should be reinstated, constitutes medical malpractice or ordinary negligence. We conclude that at this stage, plaintiffs' claims relating to the physician's act implicate ordinary negligence principles governed by a three-year statute of limitations, and that those claims were therefore interposed timely. Accordingly, we reverse the order, which, insofar as appealed from, concluded that those claims were untimely under the two-and-a-half-year limitations period applicable to medical malpractice claims.

I.

Nonparty Thomas Bochichio (the driver) suffered frequent epileptic seizures that were caused by a brain lesion. Defendant Dr. Edward K. Avila, a neurologist, who was employed by defendant Memorial Sloan Kettering Cancer Center (the Hospital), began treating the driver in 2014 and continued to do so at all relevant times. In 2017, the driver was involved in a minor motor vehicle collision that occurred because he suffered an epileptic seizure while operating a vehicle. As a result of that collision, the driver's New York State driver's license was, in effect or in fact, suspended.

In May 2019, the driver sought to have his driver's license reinstated. Because his driving privileges had been affected by his seizure-related loss of consciousness,^FN1 the driver had to satisfy the DMV that he was fit for licensing (see Vehicle and Traffic Law § 502[9][a], [c]; 15 NYCRR 9.3). One way the driver could demonstrate such fitness was to establish, by a physician's statement so attesting, that he had not experienced a loss of consciousness within the previous 12 months (see Vehicle and Traffic Law § 502[9][e]; 15 NYCRR 9.3[a]). The driver therefore submitted to the DMV a "Physician Statement for [DMV] Medical Review Unit" (the DMV form). The second page of the two-page form, which required completion by the driver's physician (or other qualified medical professional), contained 10 questions relating to the driver's medical condition. Some questions called for the physician to provide information regarding the driver's medical condition generally, and information derived from a recent examination of the driver. Other questions called for the physician's medical judgment or opinion.

On May 15, 2019, Dr. Avila examined and assessed the driver. According to Dr. Avila's treatment note for that date, the driver's last seizure was on January 4, 2019 â​​ a point Dr. Avila made twice in his note â​​ and the driver had been seizure- free for four months.

[*2]

1

Based on the May 15, 2019 examination, Dr. Avila filled out and executed the second page of the DMV form. He responded to questions regarding tests he conducted, and the driver's then-current treatment, medications, and therapy. Question number 2 asked Dr. Avila to identify the "[c]ondition patient is being treated for"; he checked a box corresponding to "Epilepsy/convulsive disorder." In response to question number 4, asking the "[d]ate of last episode/incident associated with this condition [i.e., epilepsy]," Dr. Avila recorded "June 2017." The final question asked for a medical opinion regarding the likelihood that the driver's condition would interfere with the safe operation of a motor vehicle, and Dr. Avila checked a box indicating that the driver's condition would "not interfere" with the safe operation of a motor vehicle.

As discussed in greater detail below, it is Dr. Avila's answer to the date-of-last-episode question (question number 4) that lies at the heart of this appeal, given the obvious discrepancy between the June 2017 date recorded on the DMV form and the January 4, 2019 date reflected in Dr. Avila's May 15, 2019 treatment note. The June 2017 date does not appear to be random. Prior to May 15, 2019, Dr. Avila last saw the driver on January 23, 2019, at which time he recorded that the driver's last seizure was "June 2017." It is possible, therefore, that Dr. Avila transcribed the date from the January 23, 2019 treatment notes instead of the May 15, 2019 notes when filling out the DMV form. Shortly after the May 15 examination, the DMV granted the driver's application and reinstated his driver's license. On July 28, 2019, the driver was involved in a horrific multivehicle motor vehicle collision. In that collision, the driver experienced a seizure while operating a vehicle on the Meadowbrook Parkway in Nassau County. The multivehicle collision, precipitated by the driver's seizure-associated loss of consciousness, resulted in the deaths of two people, Timothy Lafferty and Samantha Shaw.

II.

On December 21, 2022, plaintiffs, the representatives of the estates of Mr. Lafferty and Ms. Shaw, commenced this action to recover damages against Dr. Avila and the Hospital.^FN2 Plaintiffs asserted causes of action, among other things, for the decedents' conscious pain and suffering (the survival-action claims [see 1B NY PJI3d 2:320, at 1156 [2026]).^FN3 The majority of the allegations in the complaint charged defendants with medical malpractice; some of the allegations were cast in terms of negligence.

Plaintiffs' bill of particulars as to Dr. Avila specified numerous theories of medical malpractice: malpractice in treatment of the driver; malpractice in considering the significance of the driver's continued manifestations of seizure symptoms; malpractice in prematurely approving the driver's application for reinstatement of his driving privileges; and malpractice in monitoring and adjusting the driver's medications.

[*3]

The bill of particulars also asserted that Dr. Avila "negligently complet[ed] the DMV . . . form on May 15, 2019, which represented that [the driver] had been symptom free since June 2017, contrary to the history documented in defendant's office's notes." Based on the bill of particulars, and plaintiffs' submissions before Supreme Court and us, the last theory can be summarized as follows: The DMV relies on information provided to it by an applicant's physician to ascertain whether the applicant meets the criteria for reinstatement of the applicant's driver's license; one of the criteria, with some exceptions, is that the applicant be seizure-free for at least 12 months, in filling out the DMV form, Dr. Avila erroneously stated that the driver's last episode or incident of seizure was in June 2017; that information expressed to the DMV that the driver had been seizure-free for more than 12 months and therefore met the 12-month requirement; in fact, the driver's last seizure was in January 2019, only 4 months prior to the May 2019 examination; and if Dr. Avila had recorded the accurate date of the driver's last seizure, the DMV would have been alerted that the driver did not meet the 12-month requirement, his license would not have been reinstated, and he would not have been authorized to drive on the date of the accident.

III.

After interposing their answers, but before any meaningful discovery, defendants moved to dismiss the complaint under CPLR 3211(a)(5) and for summary judgment.^FN4 Defendants maintained that plaintiffs' survival-action claims sounded in medical malpractice and were governed by a two-and-a-half-year statute of limitations. They asserted that because the claims accrued, at the latest, on July 28, 2019, the date of the accident, and factoring in the relevant COVID toll (see generally David D. Siegel & Patrick M. Connors, NY Practice § 33 [6th ed 2018]), the statute of limitations expired by October 16, 2022. They concluded that plaintiffs' claims, which were interposed on December 21, 2022, were therefore time-barred.

Plaintiffs opposed the motion, arguing that their claims relating to Dr. Avila's negligent recording of the last date of the driver's seizure on the DMV form were ordinary negligence claims subject to a three-year statute of limitations. Plaintiffs asserted that the survival-action claims accrued on July 28, 2019; the three-year statute of limitations (with COVID toll) expired in March 2023; and the claims were timely brought in December 2022.

IV.

Supreme Court, among other things, granted those aspects of defendants' motion seeking dismissal of the survival- action claims on the ground that those claims were time-barred. The court rejected plaintiffs' contention that their claims premised on Dr. Avila's misstatement on the DMV form sounded in ordinary negligence, concluding instead that they were medical malpractice claims governed by the shorter statute of limitations.

V.

[*4]

2

Plaintiffs argue that Dr. Avila's clerical misstatement on the DMV form regarding the date on which the driver last suffered a seizure constituted ordinary negligence, not medical malpractice, and that the survival-action claims are therefore timely. Plaintiffs assert that Dr. Avila's erroneous recording of that date was a simple administrative mistake unrelated to medical treatment or professional skill or judgment, and that Dr. Avila's ordinary negligence in recording the wrong date of the driver's last seizure conveyed to the DMV that the driver had been seizure-free for at least 12 months, authorizing the DMV to reinstate his license and allowing him to regain his driver's license. Defendants respond that Supreme Court correctly characterized Dr. Avila's inaccurate recording of the date of the last seizure as an act of medical malpractice because plaintiffs' claims arise from medical treatment rendered by a physician to a patient. Defendants insist that expert testimony will be required for a jury to understand and evaluate plaintiffs' claims. Defendants highlight that the DMV form needed to be filled out by the driver's treating physician (or other specified healthcare provider), called for Dr. Avila's medical opinion, and required information that Dr. Avila gleaned from his treatment of the driver. The completion of the DMV form, therefore, bore a substantial relationship to the medical care rendered by Dr. Avila to the driver, and constituted medical malpractice.

VI.

A.

The statute of limitations for a claim of medical malpractice is two-and-a-half years (see CPLR 214-a) while the limitations period for a claim for ordinary negligence is three years (see CPLR 214[3], [4], [5]). The parties appear to agree that if plaintiffs' survival-action claims sound in medical malpractice, then those claims are time-barred, and, conversely, if the survival-action claims sound in ordinary negligence, then they are timely.^FN5

B.

[*5]

"The 'distinction between medical malpractice and negligence is a subtle one, for medical malpractice is but a species of negligence' " (Bledsoe v Center for Human Reproduction, 228 AD3d 96, 99 [1st Dept 2024, Shulman, J.], quoting Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [1996]). That distinction turns on whether the act complained of involves a matter of medical science or art requiring special skills not ordinarily possessed by lay persons (a medical malpractice claim), or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of fact (an ordinary negligence claim) (see Bledsoe, 228 AD3d at 99; Rabinovich v Maimonides Med. Ctr.,

179 AD3d 88, 93 [2d Dept 2019]; see also Trofimova v Seniorcare Emergency Med. Servs., Inc., 221 AD3d 516, 516 [1st Dept 2023]; Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]). Relatedly, a claim sounds in medical malpractice when "the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient" (Davis v South Nassau Communities Hosp., 26 NY3d 563, 580 [2015]; Dupree v Giugliano, 20 NY3d 921, 924 [2012]; Weiner, 88 NY2d at 788; Scott v Uljanov, 74 NY2d 673, 674-675 [1989]). However, when a plaintiff's allegations do not focus on negligence in furnishing medical treatment to a patient, but on a physician's failure in fulfilling a different duty, the claim sounds in ordinary negligence (Weiner, 88 NY2d at 788; Bledsoe, 228 AD3d at 99). In categorizing a claim for statute of limitations purposes, we must focus on the essence of the claim, and, critically, identify the nature of the duty owed to the plaintiff that the defendant allegedly breached (id. at 99; Annunziata v Quest Diagnostics Inc., 127 AD3d 630, 631 [1st Dept 2015]; see Rabinovich, 179 AD3d at 93).

C.

[*6] Here, plaintiffs' survival-action claims, premised on the theory that Dr. Avila erroneously recorded the date of the driver's last seizure in the DMV form, which error led to the DMV reinstating the driver's license, sound in ordinary negligence. The crux of the survival-action claims is not Dr. Avila's negligence in furnishing medical treatment to the driver; rather, the essence of the claims is that Dr. Avila failed to fulfill a different duty. The nature of the act underlying those claims â​​ transcribing a date from a treatment note to a governmental administration form â​​ "is more administrative than medical in nature" (Bledsoe, 228 AD3d at 100 [internal quotation marks omitted]; see Playford v Phelps Mem. Hosp. Ctr., 254 AD2d 471, 471 [2d Dept 1998], lv denied 93 NY2d 806 [1999]). Because the act underpinning the survival-action claims is administrative in nature, jurors can use their common everyday experience to evaluate whether Dr. Avila exercised due care (Bledsoe, 228 AD3d at 99; see Coursen, 114 AD2d at 256). That a physician made the alleged administrative error does not transform the claim from one sounding in ordinary negligence to one for medical malpractice; the characterization of a particular claim depends not on the title of the actor but on the nature of the challenged act (Bledsoe, 228 AD3d at 101).^FN6 Moreover, whether expert testimony will be required or may be utilized at some future procedural juncture is not controlling in making the distinction between medical malpractice and ordinary negligence (see Weiner, 88 NY2d at 789; Payette v Rockefeller Univ., 220 AD2d 69, 73-74 [1st Dept 1996]; see also 1B NY PJI3d 2:149 at 8).

Ultimately, the core issue related to plaintiffs' survival-action claims â​​ whether Dr. Avila failed to exercise due care in recording a fact on the DMV form â​​ may not implicate questions of medical competence or judgment regarding the treatment of the driver (Weiner, 88 NY2d at 788). Unlike the inquiry on a medical malpractice claim, whether Dr. Avila breached his duty to exercise due care in recording a fact on the DMV form does not depend on an analysis of the medical treatment rendered to the driver (id.).

D.

[*7]

3