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March 27, 1967

William H. CHARTENER, as Heir of Evelyn Chartener, Deceased, Plaintiff,
Janith KICE, Defendant

Mishler, District Judge.

The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

The defendant in this medical malpractice action moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that the plaintiff's survival and wrongful death actions are barred by the statutes of limitations, and that the plaintiff lacks the requisite capacity to sue.

 The plaintiff and his wife were New York domiciliaries prior to December, 1959, but in that month they moved their family to Palo Alto, California. They returned to New York in September, 1960, in order to visit the decedent's parents, and, during their stay, the decedent consulted with the defendant about a mole on her back. Previously, while she had still been a New York resident, the decedent had gone to the defendant for the removal of some unsightly warts.

 The plaintiff alleges that in September, 1960, the mole was pigmented, and that the decedent told the defendant that it not only had shown some growth, but also had bled a little. He further claims that in spite of the fact that she possessed such information, the defendant attempted to remove the mole with a curette and failed to perform a biopsy. Shortly thereafter, the plaintiff and his wife returned to California, but within a few months the mole grew back.

 The plaintiff and his wife next visited New York in March, 1961, at which time the latter was again treated by the defendant for the same condition. The plaintiff states that on that occasion the defendant burnt off the mole and again failed to perform a biopsy. In addition, the defendant is alleged to have remarked to the decedent that if the mole grew back once more, it would have to be removed surgically.

 Several months later, the decedent's lesion was diagnosed as malignant melanoma, which had metastasized via the lymphatic system. In an attempt to combat the cancer, the decedent underwent surgery and finally was treated with vineristine, an experimental drug. She died in California on August 12, 1963.

 The plaintiff and his son continued to reside in California until the end of 1964, at which time they moved back to New York. The complaint in this action was filed on April 23, 1964, however, at a time when the plaintiff was still a California resident, and therein, he argues, there would have been no metastasis if the mole had been removed surgically at the time of either of the defendant's treatments. He asserts that the defendant's acts and omissions constituted improper professional care, and that as a result of such negligence, his wife suffered greatly and finally succumbed.

 Accordingly, the plaintiff presses the following causes of action: (1) For wrongful death, and (2) a survival action for pain and suffering. Judgment is demanded against the defendant in the sum of Three Hundred Thousand ($300,000) Dollars on each cause of action.

 In her answer, the defendant generally denies the plaintiff's allegations, but she admits that she was consulted by the decedent, and that she rendered certain professional services. She now offers two main arguments in support of her motion for summary judgment: First, that the actions are barred by the applicable New York statutes of limitations; and, second, that since the plaintiff is neither the executor nor administrator of the decedent's estate, he lacks the capacity to sue under the applicable New York law.

 The plaintiff argues as follows: (1) Neither action is barred because the applicable statutes of limitations are those of California, and, thereunder, present actions were timely commenced; (2) If New York's statutes of limitations are held to be applicable, the actions were still timely commenced; (3) In any event, the statutes of limitations would be tolled by the decedent's intervening incompetency; (4) The plaintiff possesses the requisite capacity to sue, but assuming that such is not the case, either the defendant has waived her right to raise the defect or it can be corrected by an amendment of the pleadings; and, finally, (5) That several genuine issues of fact remain to be tried.

 Since jurisdiction is based upon diversity of citizenship, this Court must apply New York law, including conflict of law rules, on all substantive issues. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). For diversity purposes, the defense of the statute of limitations is considered substantive or "outcome determinative" to be governed by the law of the forum state. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S. Ct. 1464, 89 L. Ed. 2079 (1945); see also, Graziano v. Pennell (2d Cir.) 371 F.2d 761.

 In wrongful death cases, the traditional New York conflicts rule was that all issues deemed "substantive" for conflict of laws purposes are governed by the law of the place where the wrong causing the death occurred. Davenport v. Webb, 11 N.Y.2d 392, 230 N.Y.S.2d 17, 183 N.E.2d 902 (1962); Baldwin v. Powell, 294 N.Y. 130, 61 N.E.2d 412 (1945). But in Long v. Pan Am. World Airways, Inc., 16 N.Y.2d 337, 266 N.Y.S.2d 513, 213 N.E.2d 796 (1965), the New York Court of Appeals abandoned the traditional rule and applied the reasoning of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), to wrongful death actions: the applicable law is the law of "* * * the place having the most significant relationship with, and the greatest interest in, the issue presented". Long v. Pan Am. World Airways, Inc., supra, at 343, 266 N.Y.S.2d at 517-518, 213 N.E.2d at 799. As noted heretofore, the specific issues raised on this motion for summary judgment concern the statute of limitations and the plaintiff's capacity to sue.

 Statute of Limitations

 For choice of law purposes, New York has traditionally regarded statutes of limitations as procedural unless the right sued upon was created by a foreign statute under which the commencement of an action within a specified period is a condition precedent to securing relief. Association for the Preservation of Freedom of Choice, Inc. v. Simon, 299 F.2d 212, 214 (2d Cir. 1962); Bournias v. Atlantic Maritime Co., 220 F.2d 152, 155 (2d Cir. 1955); Hughes v. Hinson's Garage, Inc., 9 A.D.2d 1014, 194 N.Y.S.2d 324, 325 (4th Dep't 1959); Weiss v. Baviello, 203 Misc. 1031, 1032, 117 N.Y.S.2d 891, 892 (Sup.Ct.1952). In such instances, the running of the statute is said to bar both the right and the remedy, and the limitation period is considered to be so tied up with the underlying right that for choice of law purposes, the limitation clause is treated as a "substantive" rule of law. Generally, where a wrongful death statute contains a specific "builtin" limitation period, ...

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