| Quiroz v Beitia |
| 2009 NY Slip Op 09448 [68 AD3d 957] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Milagros Quiroz, Respondent, v Antonio Beitia et al.,Defendants, Wyckoff Heights Medical Center, Defendant and Third-Party Plaintiff-Respondent,and Wyckoff Imaging Services, P.C., Appellant. Clyde Gregoire, Third-PartyDefendant-Appellant. |
—[*1] Barton Barton & Plotkin, LLP, New York, N.Y. (Sherri L. Plotkin and Thomas P. Giuffra ofcounsel), for plaintiff-respondent. Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (David J. Knight and Kevin C. Petkosof counsel), for defendant and third-party plaintiff-respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant WyckoffImaging Services, P.C., appeals, as limited by the brief, from so much of an order of theSupreme Court, Kings County (Jackson, J.), dated January 6, 2009, as denied its motion, ineffect, for summary judgment dismissing the amended complaint insofar as asserted against it astime-barred, denied its separate motion pursuant to CPLR 3126 to dismiss the cross claimasserted against it by the defendant Wyckoff Heights Medical Center, denied its separate motionto sever the action insofar as asserted against it, and granted the cross motion of the defendantWyckoff Heights Medical Center for summary judgment on its cross claim for contractualindemnification against the defendant Wyckoff Imaging Services, P.C., and the third-partydefendant Clyde Gregoire, as executor of the estate of Rafael Loscos, also appeals, as limited bythe brief, from so much of the same order as denied his motion to sever the third-party action.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thecross motion of the defendant Wyckoff Heights Medical Center for summary judgment on itscross claim for contractual indemnification against the defendant Wyckoff Imaging Services,P.C., and substituting therefor a provision denying the cross motion; as so modified, the order isaffirmed insofar as appealed from, without costs or disbursements.
In September 2003 the plaintiff underwent a mammography at the defendant WyckoffHeights Medical Center (hereinafter Medical Center), which was interpreted by the defendantAntonio [*2]Beitia (hereinafter Dr. Beitia). In October 2003 theplaintiff had radiograph films taken at the Medical Center of her pelvic area after complaining ofpain. Dr. Rafael Loscos interpreted the films and found them to be normal. On December 10,2004 the plaintiff underwent an MRI at the Bellevue Hospital Center, which revealed that shehad a large tumor in her pelvic area. Additionally, in December 2005 a biopsy was performed onthe plaintiff at the Bellevue Hospital Center, which revealed that she had breast cancer.
On or about March 17, 2006 the plaintiff commenced the instant action against, amongothers, the Medical Center and Dr. Beitia, alleging, inter alia, that they negligently failed todiagnose and treat the plaintiff's pelvic tumor and breast cancer.
Thereafter, a deposition was conducted of Dr. Beitia on June 15, 2007. Dr. Beitia testifiedthat he and Dr. Loscos were employed by the defendant Wyckoff Imaging Services, P.C.(hereinafter Wyckoff Imaging), while working at the Medical Center.
On or about July 20, 2007 the plaintiff moved for leave to amend her complaint to addWyckoff Imaging as a defendant. In an order dated January 17, 2008 the Supreme Court grantedthe plaintiff's motion, and the plaintiff served an amended complaint on Wyckoff Imaging on orabout March 18, 2008. The Medical Center then asserted a cross claim for contractualindemnification against Wyckoff Imaging, and commenced a third-party action against ClydeGregoire, as executor of the estate of Rafael Loscos (hereinafter the estate). Wyckoff Imagingbrought three separate motions, which were (1), in effect, for summary judgment dismissing theamended complaint insofar as asserted against it as time-barred, (2) pursuant to CPLR 3126 todismiss the cross claim asserted against it by the Medical Center, and (3) to sever the actioninsofar as asserted against it. The Medical Center cross-moved for summary judgment on itscross claim for contractual indemnification against Wyckoff Imaging. Additionally, the estatemoved to sever the third-party action from the main action. The Supreme Court deniedWyckoff's motions and the estate's motion, and granted the Medical Center's cross motion.
The Supreme Court properly denied Wyckoff Imaging's motion, in effect, for summaryjudgment dismissing the amended complaint insofar as asserted against it as time-barred.Wyckoff Imaging established that the amended complaint was filed after the expiration of the2½-year statute of limitations applicable to a cause of action to recover damages formedical malpractice (see CPLR 214-a; Alvarado v Beth Israel Med. Ctr., 60AD3d 981, 982 [2009]; Teer v Queens-Long Is. Med. Group, 303 AD2d 488, 489[2003]). The burden then shifted to the plaintiff to present evidence sufficient to establish thatthe relation-back doctrine applied (see Cardamone v Ricotta, 47 AD3d 659, 660 [2008];Nani v Gould, 39 AD3d 508, 509 [2007]; Austin v Interfaith Med. Ctr., 264AD2d 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 such notice of theinstitution of the action that the new party will not be prejudiced in maintaining its defense onthe merits by the delayed, otherwise stale, commencement, and (3) the new party knew or shouldhave known that, but for a mistake by the plaintiff as to the identity of the proper parties, theaction would have been brought against that party as well" (Schiavone v Victory Mem.Hosp., 292 AD2d 365, 366 [2002] [internal quotation marks and citation omitted]; seeBuran v Coupal, 87 NY2d 173, 178 [1995]; Alvarado v Beth Israel Med. Ctr., 60AD3d 981, 982 [2009]).
Here, the relevant claims clearly arose out of the same conduct, transaction, or occurrence.
Contrary to Wyckoff Imaging's contention, the doctrine of the law of the case did not preventthe plaintiff from arguing, in opposition to its motion, that Wyckoff Imaging was united ininterest with the Medical Center for purposes of the applicability of the relation-back doctrine,since the Supreme Court never determined this issue at an earlier stage of the proceeding (seeD'Amato v Access Mfg., 305 AD2d 447, 448 [2003]).
Wyckoff Imaging also contends that the plaintiff failed to establish that it was united ininterest with the Medical Center. "Interests will be united only where one party is vicariouslyliable for the [*3]acts of the other" (Teer v Queens-Long Is.Med. Group, 303 AD2d at 489). Wyckoff Imaging and the Medical Center are vicariouslyliable for the negligence of each other by virtue of their contractual relationship that created ajoint venture (see Tilden of N.J. v Regency Leasing Sys., 230 AD2d 784, 785-786[1996]; Connell v Hayden, 83 AD2d 30, 54-55 [1981]). Furthermore, Wyckoff Imagingis required to indemnify the Medical Center for the wrongful acts or omissions of WyckoffImaging's physicians pursuant to the indemnification clause contained in the agreement betweenWyckoff Imaging and the Medical Center. Therefore, Wyckoff Imaging and the Medical Centerare united in interest (see Austin v Interfaith Med. Ctr., 264 AD2d at 704).
With respect to the third prong of the relation-back doctrine, the plaintiff established thatWyckoff Imaging would have had notice of the pending action due to its relationship with theMedical Center and its obligation to defend and indemnify the Medical Center with respect tothe plaintiff's claims concerning the negligence of Wyckoff Imaging's physicians (id. at704; see Yaniv v Taub, 256 AD2d 273 [1998]).
Wyckoff Imaging's motion to dismiss the Medical Center's cross claim based upon theMedical Center's failure to respond to Wyckoff Imaging's discovery demands was properlydenied. Wyckoff Imaging failed to provide an affirmation of a good-faith effort to resolve anydiscovery disputes as required by 22 NYCRR 202.7 (see Walter B. Melvin, Architects, LLCv 24 Aqueduct Lane Condominium, 51 AD3d 784 [2008]; Barnes v NYNEX, Inc.,274 AD2d 368 [2000]). In any event, Wyckoff Imaging failed to establish that any allegedfailure by the Medical Center to comply with its discovery demands was the result of willful orcontumacious conduct (see Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954,954-955 [2009]; Diel v Rosenfeld, 12 AD3d 558 [2004]; Dennis v City of NewYork, 304 AD2d 611, 613 [2003]; Ploski v Riverwood Owners Corp., 284 AD2d316 [2001]).
The Supreme Court properly exercised its discretion in denying Wyckoff Imaging's motionto sever the action insofar asserted against it and the estate's motion to sever the third-partyaction from the main action. "The determination to grant or deny a request for a severancepursuant to CPLR 603 is a matter of judicial discretion which should not be disturbed on appealabsent a showing of prejudice to a substantial right of the party seeking the severance"(Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726, 727 [2006]). In this case,there are common factual and legal issues involved and the interests of judicial economy andconsistency will be served by having a single trial (see Curreri v Heritage Prop. Inv. Trust,Inc., 48 AD3d 505, 507 [2008]; Ingoglia v Leshaj, 1 AD3d 482, 485 [2003]), andWyckoff Imaging and the Estate both failed to establish that a single trial would result inprejudice to a substantial right (see Mothersil v Town Sports Intl., 24 AD3d 424, 425[2005]).
However, the Supreme Court erred in granting the Medical Center's cross motion forsummary judgment on its cross claim for contractual indemnification. In determining the right ofa party to contractual indemnification, the court will look at the "specific language of thecontract" (Kader v City of N.Y., Hous. Preserv. & Dev., 16 AD3d 461, 463 [2005][internal quotation marks omitted]). Here, the indemnification provision requires WyckoffImaging to indemnify the Medical Center for claims arising out of the wrongful acts oromissions of Wyckoff Imaging's physicians. Since it has not been determined whether theplaintiff's injury was caused by any wrongful act or omission of Dr. Losco, an award of summaryjudgment here would be premature (see D'Angelo v Builders Group, 45 AD3d 522,524-525 [2007]; Farduchi v United Artists Theatre Circuit, Inc., 23 AD3d 613 [2005];Kader v City of N.Y., Hous. Preserv. & Dev., 16 AD3d at 463; cf. Brookhaven Mem.Hosp. Med. Ctr. v County of Suffolk, 155 AD2d 404 [1989]).
Wyckoff Imaging's remaining contentions are without merit. Rivera, J.P., Florio, Miller andHall, JJ., concur.