| Alvarado v Beth Israel Med. Ctr. |
| 2009 NY Slip Op 02550 [60 AD3d 981] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Maria Alvarado et al., Appellants, v Beth Israel MedicalCenter et al., Defendants, and Seth Cohen, Respondent. |
—[*1] Kanterman, O'Leary & Soscia, LLP, Jamaica, N.Y. (Catherine A. Mirabel of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.),dated October 18, 2007, as granted the motion of the defendant Seth Cohen pursuant to CPLR3211 (a) (5) to dismiss the amended complaint insofar as asserted against him as time-barred,and denied their cross motion pursuant to CPLR 203 (f) to deem the claims asserted in theamended complaint against that defendant to have been timely interposed.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 14, 1999, the injured plaintiff underwent a procedure known as a laparoscopiccholecystectomy (hereinafter lap choly). The lap choly was performed by the defendantphysician Andrew Lo at the defendant Beth Israel Medical Center (hereinafter BIMC). In thedays following the lap choly, a bile duct leak was suspected.
On September 17, 1999, the injured plaintiff underwent a procedure known as endoscopicretrograde cholangiopancreatography (hereinafter the ERCP). The ERCP was performed atBIMC by the defendant physician Seth Cohen, who was not an employee of BIMC. Later thatday, after the ERCP was performed, the injured plaintiff underwent emergency surgeryperformed by Lo, [*2]whereupon it was discovered that herduodenum had been perforated.
On or about February 25, 2002, the injured plaintiff and her husband commenced the instantaction against Lo and BIMC alleging, inter alia, that the lap choly was negligently performed.The plaintiffs did not initially name Cohen as a defendant, and did not refer to the ERCP in thecomplaint.
On October 24, 2006, more than four years after the expiration of the applicable statute oflimitations, Cohen was deposed as a nonparty witness. He testified at his deposition that hebelieved that the perforation might have occurred during the ERCP. Lo subsequently testified athis deposition that Cohen told him that a "hole" in the duodenum was made during the ERCP.
On or about May 23, 2007, the plaintiffs filed an amended complaint, which added Cohen asa defendant and asserted a cause of action against him based on his alleged medical malpracticein performing the ERCP. Cohen then moved to dismiss the amended complaint insofar asasserted against him pursuant to CPLR 3211 (a) (5), based on the statute of limitations. Theplaintiffs cross-moved to deem the claims asserted in the amended complaint against Cohen tohave been interposed at the time of the original complaint under the relation-back doctrine(see CPLR 203 [f]). The Supreme Court held that the relation-back doctrine did notapply, and thus, inter alia, granted Cohen's motion to dismiss the amended complaint insofar asasserted against him.
On his motion, Cohen established that the amended complaint was filed after the expirationof the 2½-year statute of limitations applicable to a cause of action to recover damages formedical malpractice (see CPLR 214-a; Teer v Queens-Long Is. Med. Group, 303AD2d 488, 489 [2003]). The burden then shifted to the plaintiffs to present sufficient evidencethat the relation-back doctrine applied (see Austin v Interfaith Med. Ctr., 264 AD2d 702,703 [1999]).
In order for a claim asserted against a new defendant to relate back to the date a claim wasasserted against another defendant, the plaintiff must establish that (1) both claims arose out ofthe same conduct, transaction, or occurrence, (2) the new party is united in interest with theoriginal defendant, and by reason of that relationship, can be charged with notice of theinstitution of the action and will not be prejudiced in maintaining his or her defense on the meritsby virtue of the delayed, and otherwise stale, assertion of those claims against him or her, and (3)the new party knew or should have known that, but for a mistake by the plaintiff as to theidentity of the proper parties, the action would have been timely commenced against him or heras well (see Buran v Coupal, 87 NY2d 173, 178 [1995]; Schiavone v Victory Mem.Hosp., 292 AD2d 365, 365-366 [2002]; Austin v Interfaith Med. Ctr., 264 AD2d at703). The "linchpin" of the relation-back doctrine is whether the new defendant had noticewithin the applicable limitations period (see Buran v Coupal, 87 NY2d at 180;Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444 [2007]).
Here, the plaintiffs failed to present evidence sufficient to satisfy the third prong of therelation-back doctrine test. There is no evidence in the record that Cohen had notice of thepending action before being subpoenaed to give a deposition as a nonparty witness,approximately seven years after he allegedly committed the malpractice (see Buran v Coupal,87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at444). Cohen could have reasonably concluded that the plaintiffs' failure to sue him within theapplicable limitations period meant that there they had no intent to sue him, and thus, that thematter had been laid to rest (see Buran v [*3]Coupal, 87NY2d at 181; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444;see also Spaulding v Mt. Vernon Hosp., 283 AD2d 634, 634-635 [2001]).
Accordingly, the Supreme Court properly granted Cohen's motion to dismiss the amendedcomplaint insofar as asserted against him as time-barred, and properly denied the plaintiffs' crossmotion to deem the claims asserted in the amended complaint against Cohen to have been timelyinterposed. Skelos, J.P., Dillon, Covello and Leventhal, JJ., concur.