| Cardamone v Ricotta |
| 2008 NY Slip Op 00215 [47 AD3d 659] |
| January 15, 2008 |
| Appellate Division, Second Department |
| Diana Cardamone, Plaintiff, v John J. Ricotta et al.,Defendants. (Action No. 1.) Diana Cardamone, Appellant, v James Vosswinkel et al.,Respondents. (Action No. 2.) |
—[*1] Brown & Tarantino, LLC, White Plains, N.Y. (Tamsin J. Hager of counsel), forrespondents.
In related actions, inter alia, to recover damages for medical malpractice and wrongful death,the plaintiff in action No. 2 appeals from so much of an order of the Supreme Court, NassauCounty (Parga, J.), dated August 28, 2006, as granted the separate motions of the defendants inaction No. 2, James Vosswinkel and Bo Liu, pursuant to CPLR 3211 (a) (5) to dismiss thecomplaint as time-barred.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's decedent was admitted to Stony Brook University Hospital on September 8,2002. On September 19, 2002 she was taken to an operating room where she underwent anangioplasty of her left renal artery. Thereafter, she allegedly suffered a difficult post-operativecourse, which included active bleeding in her pelvic region. Intervention was unsuccessful, andthe decedent died on an operating table, early on the morning of September 20, [*2]2002.
The administratrix of the decedent's estate commenced action No. 2 against the defendantsJames Vosswinkel, M.D., and Bo Liu, M.D. (hereinafter the defendants), on March 21, 2006.
In lieu of answering the complaint, the defendants made separate motions to dismiss itpursuant to CPLR 3211 (a) (5), asserting that the action was time-barred based on the applicablestatutes of limitation. Both defendants maintained that the period of limitations for the cause ofaction alleging medical malpractice expired on March 20, 2005 (see CPLR 214-a). (Thecorrect date of expiration actually was March 21, 2005, since the day before was a Sunday;see General Construction Law § 25-a [1]. However, the difference is immaterial onthe facts presented). Further, they argued that the period of limitations for the cause of actionalleging wrongful death expired on September 20, 2004 (see EPTL 5-4.1). In oppositionto the motions, the plaintiff argued that the interposition of the causes of action in this caserelated back to her timely interposition of claims against the State of New York in earlier-filedactions in the Court of Claims.
"For the rule allowing relation back to the date of service or filing of the original complaintunder CPLR 203 (b) or (c) to be operative in an action in which a party is added beyond theapplicable limitations period, a plaintiff is required to prove that (1) both claims arose out of thesame conduct, transaction, or occurrence, (2) the new party is united in interest with the originaldefendant, and by reason of that relationship can be charged with such notice of the institution ofthe action that the new party will not be prejudiced in maintaining its defense on the merits by thedelayed, otherwise stale, commencement, and (3) the new party knew or should have known that,but for a mistake by the plaintiff as to the identity of the proper parties, the action would havebeen brought against that party as well" (Austin v Interfaith Med. Ctr., 264 AD2d 702,703 [1999]; see Buran v Coupal, 87 NY2d 173, 178 [1995]; Mondello v New YorkBlood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219, 226 [1992]; Nani v Gould, 39 AD3d 508, 509[2007]; Brock v Bua, 83 AD2d 61, 69 [1981]).
Once a defendant has demonstrated that the statute of limitations has expired, "[t]he burdenis on the plaintiff to establish the applicability of the [relation back] doctrine" (Nani v Gould, 39 AD3d 508, 509[2007]; see Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]). The plaintifffailed to do so.
The Supreme Court correctly determined that the plaintiff's failure to timely bring the actionagainst the defendants was "the product of [her] failure to make a timely and genuine attempt toascertain [their] identity," rather than the result of a mistake (Hall v Rao, 26 AD3d 694, 696 [2006]), and the defendants "had noreason to think that [they] would have been named in the related action but for a mistake as to[their] identity" (Nani v Gould, 39AD3d 508, 510 [2007]; see Brock v Bua, 83 AD2d 61, 70-71 [1981]). As noted bythe Supreme Court, the decedent's chart referenced Dr. Liu as being part of the anesthesia teamduring the plaintiff's fatal surgery, and a resident's note mentioned Dr. Vosswinkel as beingpresent when the plaintiff was intubated and brought into the operating room late in the eveningof September 19, 2002. Nevertheless, as correctly noted by the Supreme Court, there was "nosworn allegation by plaintiff that [these documents were] not available to plaintiff before thestatute[s] of limitations expired." For all that appears from this record—assuming theyeven knew about the earlier, Court of Claims, actions—the defendants could reasonablyhave concluded that the plaintiff's failure to sue them within the applicable periods of limitationsmeant that there was no intent to sue them at all and that the matter had been concluded as far asthey were [*3]concerned (see Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d443, 444 [2007]; Nani v Gould,39 AD3d 508, 510 [2007]; cf. Buran v Coupal, 87 NY2d 173, 182 [1995];Duffy v Horton Mem. Hosp., 66 NY2d 473, 477 [1985]).
Accordingly, the Supreme Court properly granted the defendants' motions to dismiss thecomplaint in action No. 2 on the ground that it was barred by the applicable statutes of limitation.
The plaintiff's remaining contentions are without merit. Crane, J.P., Miller, Dillon andBalkin, JJ., concur.