| Marino v Westchester Med. Group, P.C. |
| 2008 NY Slip Op 03426 [50 AD3d 861] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Marilyn Marino, Appellant, v Westchester Medical Group,P.C., et al., Defendants, and Stuart Haber, Respondent. |
—[*1] Rotondo & Heath, LLP, White Plains, N.Y. (Kathi Libby Rotondo of counsel), forrespondent.
In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals from an order of the Supreme Court, Westchester County (Colabella, J.), entered January19, 2007, which granted the motion of the defendant Stuart Haber to dismiss the complaintinsofar as asserted against him pursuant to CPLR 3211 (a) (5) as time-barred.
Ordered that the order is affirmed, with costs.
For statute of limitations purposes (see CPLR 203 [b]), in order for claims assertedagainst a new defendant to relate back to the date the claims were filed against an originaldefendant, the plaintiff must "establish that (1) both claims arose out of the same conduct,transaction or occurrence, (2) the new party is united in interest with the original defendant, andby reason of that relationship can be charged with such notice of the institution of the action thatthe new party will not be prejudiced in maintaining its defense on the merits by the delayed,otherwise stale, commencement, and (3) the new party knew or should have known that, but for amistake by the plaintiff as to the identity of the proper parties, the action would have beenbrought against that party as well" (Davis v Larhette, 39 AD3d 693, 694 [2007]).
Here, the plaintiff failed to establish that the defendant Stuart Haber was united in [*2]interest with any of the original defendants (see Evans v Abitbol, 1 AD3d 313,314 [2003]). In addition, there is no evidence in the record, other than the conclusory allegationsof the plaintiff's attorney, to establish that Haber knew or should have known that, but for amistake as to the identity of the proper parties, this action would have been brought against himas well (see Shapiro v Good SamaritanRegional Hosp. Med. Ctr., 42 AD3d 443, 444 [2007]; Cintron v Lynn, 306AD2d 118, 120 [2003]). Thus, the Supreme Court properly dismissed the complaint insofar asasserted against Haber as time-barred. Skelos, J.P., Covello, Eng and Leventhal, JJ., concur.