Medical Malpractice Claims Dismissed Against BPS Client

August 2011

On June 9, 2011, N.Y. Supreme Court Justice, Mary H. Smith, granted Defendant LifeNet, Inc.'s CPLR 3211 motion to dismiss Plaintiff’s medical malpractice claims in Kumar v. Westchester Cty. Health Care Corp., et al., Index No. 2010/30914. In a prior special proceeding wherein Plaintiff successfully sought an Order granting him permission to serve a late notice of claim against the Westchester Medical Center defendants, Plaintiff represented to the Court that the Westchester Medical Center defendants were responsible for Plaintiff’s injury by definitively arguing that the injury was not present when Plaintiff had arrived at the Westchester Medical Center. Notwithstanding this earlier claim, Plaintiff subsequently alleged that LifeNet had caused Plaintiff's injury prior to Plaintiff's arrival at the Westchester Medical Center. In dismissing Plaintiff's claims against LifeNet upon the grounds of judicial estoppel, the Court held that Plaintiff was “playing fast and loose with the Courts” and that Plaintiff "simply cannot have it both ways." BPS Partner John Diaconis and BPS Associate Justin Gardner successfully represented LifeNet, Inc. in this case.