| Poblocki v Todoro |
| 2008 NY Slip Op 07384 [55 AD3d 1346] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| Arthur R. Poblocki, Individually and as Administrator of the Estate ofEileen M. Poblocki, Deceased, Plaintiff, and HealthNow New York, Inc., Intervenor-Respondent, vCarmen Todoro, M.D., et al., Appellants. |
—[*1] Webster Szanyi LLP, Buffalo (Donall O'Carroll of counsel), for intervenor-respondent.
Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered July 2,2007 in a medical malpractice action. The order granted the motion of HealthNow New York, Inc. forpermission to intervene.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, individually and as administrator of the estate of his wife (decedent),commenced this action seeking damages for the alleged medical malpractice of defendants in theirdiagnosis and treatment of decedent. We conclude that Supreme Court properly granted the motion ofHealthNow New York, Inc. (HealthNow) seeking permission to intervene in the action pursuant toCPLR 1012 and 1013. HealthNow, decedent's insurer, moved to intervene on the ground that it had acontractual right of subrogation for the expenditures that it made for the medical care provided todecedent. Contrary to the contention of defendants Carmen Todoro, M.D. and/or Carmen Todoro,M.D., P.C. and OB-GYN Associates of Western New York, P.C. (collectively, Todoro defendants),the fact that HealthNow is barred from commencing its own action against them based on the statute oflimitations does not preclude intervention inasmuch as HealthNow's claims relate back to the filing ofplaintiff's complaint (see CPLR 203 [f]; Omiatek v Marine Midland Bank, N.A., 9 AD3d 831 [2004],appeal dismissed 3 NY3d 738 [2004]; Kaczmarski v Suddaby, 9 AD3d 847 [2004], appeal dismissed3 NY3d 738 [2004]). Contrary to the further contention of the Todoro defendants, CPLR 4545 (c)does not preclude a health insurer from seeking subrogation (see Omiatek, 9 AD3d at 832;Kaczmarski, 9 AD3d 847 [2004]).[*2]
We reject the contention of the Todoro defendants thatHealthNow's motion was untimely and that they are unduly prejudiced by the delay. AlthoughHealthNow did not seek to intervene until over four years from the time that it became aware ofplaintiff's potential malpractice claims, we conclude that the court neither abused nor improvidentlyexercised its discretion in granting HealthNow's motion where, as here, the Todoro defendants willsuffer no prejudice from the delay (cf. Oparaji v Weston, 293 AD2d 592, 593 [2002];Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737, 737-738 [1989]).HealthNow demands no additional discovery, and the Todoro defendants have already conducteddiscovery on the various medical expenses paid on behalf of decedent. Contrary to the final contentionof the Todoro defendants, the intervention of HealthNow does not increase their liability inasmuch asthe complaint sought unspecified damages for all "losses and damages as a result of the defendant[s']negligence and malpractice." Present—Centra, J.P., Lunn, Peradotto, Green and Pine, JJ.