| Rivera v Fishkin |
| 2008 NY Slip Op 01521 [48 AD3d 663] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Juan Rivera et al., Appellants, v Joseph Fishkin et al.,Respondents. |
—[*1] Ivone Devine & Jensen, LLP, Lake Success, N.Y. (Brian E. Lee of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appealfrom an order of the Supreme Court, Kings County (Levine, J.), dated December 15, 2006, whichdenied their motion for leave to serve a second amended complaint.
Ordered that the order is reversed, on the facts and in the exercise of discretion, with costs,the plaintiffs' motion for leave to serve a second amended complaint is granted, and the proposedsecond amended complaint which was annexed to the plaintiff's motion papers is deemed served.
On or about February 2, 2004 the defendant Dr. Joseph Fishkin performed cataract surgeryon the plaintiff Juan Rivera. Rivera and his wife later commenced this action against Dr. Fishkinto recover damages for medical malpractice, lack of informed consent, and loss of consortium.Thereafter, believing that Dr. Fishkin was employed by New York Eye Care (hereinafter NYEC),the plaintiffs sought and obtained leave to serve an amended complaint naming NYEC as anadditional defendant. In its answer, the defendant NYEC admitted, inter alia, that Dr. Fishkin wasits employee. However, when a witness for NYEC was later deposed on August 30,2006—after the applicable statute of limitations had run—the plaintiffs learned thatNYEC was nothing more than the business name of Sheldon Rabin, M.D., P.C. The plaintiffsthen sought leave to serve a second amended complaint naming Sheldon Rabin, M.D., P.C., as anadditional defendant. The Supreme [*2]Court denied the motion.We reverse.
"The relation-back doctrine 'enables a plaintiff to correct a pleading error by adding either anew claim or a new party after the statutory limitations period has expired' " (Monir v Khandakar, 30 AD3d487, 488 [2006], quoting Buran v Coupal, 87 NY2d 173, 177 [1995]). "The burdenis on the plaintiff to establish the applicability of the doctrine once a defendant has demonstratedthat the Statute of Limitations has expired" (Spaulding v Mt. Vernon Hosp., 283 AD2d634, 635 [2001]).
Here, in order for the plaintiffs to establish that their putative claim against Sheldon Rabin,M.D., P.C., related back to their claim against Dr. Fishkin and NYEC, they were required todemonstrate that: (1) both claims arose out of same conduct, transaction, or occurrence, (2)Sheldon Rabin, M.D., P.C., is united in interest with Dr. Fishkin and/or NYEC, and by reason ofthat relationship can be charged with notice of the institution of the action such that it will not beprejudiced in maintaining its defense on the merits, and (3) Sheldon Rabin, M.D., P.C., knew orshould have known that, but for a mistake by the plaintiffs as to the identity of the proper parties,the action would have been brought against it as well (see Buran v Coupal, 87 NY2d at178; Porter v Annabi, 38 AD3d869 [2007]).
Contrary to the defendants' contention, the plaintiffs in this case successfully demonstratedthe applicability of the relation-back doctrine (see Monir v Khandakar, 30 AD3d at489-490). Accordingly, the Supreme Court improvidently denied the plaintiffs' motion for leaveto serve a second amended complaint naming Sheldon Rabin, M.D., P.C., as an additionaldefendant. Mastro, J.P., Fisher, Dillon and McCarthy, JJ., concur.