| Lopez v Wyckoff Hgts. Med. Ctr. |
| 2010 NY Slip Op 07901 [78 AD3d 664] |
| November 3, 2010 |
| Appellate Division, Second Department |
| Lissette Lopez, as Administratrix of the Estate of Lizzette Rodriguez,Deceased, Respondent, v Wyckoff Heights Medical Center et al., Respondents, and YvonNazaire, M.D., Appellant, et al., Defendants. |
—[*1] Wingate, Russotti & Shapiro, LLP, New York, N.Y. (Jason M. Rubin of counsel), forplaintiff-respondent. Arshack, Hajek & Lehrman, PLLC, New York, N.Y. (David J. Knight and Lynn Hajek ofcounsel), for defendant-respondent Wyckoff Heights Medical Center.
In an action to recover damages for medical malpractice, wrongful death, and conscious pain andsuffering, the defendant Yvon Nazaire appeals, as limited by his brief, from so much of an order of theSupreme Court, Kings County (Steinhardt, J.), dated February 5, 2009, as denied those branches ofhis motion which were for summary judgment dismissing the second amended complaint insofar asasserted against him as time-barred, and for leave to amend his answer to assert a cross claim forindemnification and thereupon for summary judgment on that cross claim or, alternatively, for severanceof that cross claim.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying thatbranch of the motion of the defendant Yvon Nazaire which was for summary judgment dismissing thesecond amended complaint insofar as asserted against him as time-barred and substituting therefor aprovision granting that branch of the motion, and (2) by adding thereto the words "are denied asacademic" after the words "for leave to sever"; as so modified, the order is affirmed insofar as appealedfrom, with costs to the defendant Yvon Nazaire, payable by the plaintiff.
The defendant Yvon Nazaire contends that the Supreme Court erred in denying that branch of hismotion which was for summary judgment dismissing the second amended complaint insofar as assertedagainst him as time-barred. We agree.
Nazaire established his prima facie entitlement to judgment as a matter of law dismissing the secondamended complaint insofar as asserted against him since it is undisputed that the statute of limitationshad expired prior to the plaintiff's service and filing of the second amended complaint, in which Nazairewas first named as a defendant. Accordingly, the burden then shifted to the plaintiff to raise a triableissue of fact, in opposition to that showing, as to the applicability of the "relation-back doctrine" withrespect to Nazaire (Boodoo v Albee DentalCare, 67 AD3d 717, 718 [2009]). "In order for a claim asserted [*2]against a new defendant to relate back to the date the claim was filedagainst another defendant, the plaintiff must establish that (1) both claims arose out of [the] sameconduct, transaction, or occurrence, (2) the new defendant is united in interest with the originaldefendant, and by reason of that relationship can be charged with notice of the institution of the actionsuch that he will not be prejudiced in maintaining his defense on the merits, and (3) the new defendantknew or should have known that, but for a mistake by the plaintiff as to the identity of the properparties, the action would have been brought against him as well" (Boodoo v Albee DentalCare, 67 AD3d at 718; see Buran v Coupal, 87 NY2d 173, 178 [1995]). "The linchpin ofthe relation-back doctrine is whether the new defendant had notice within the applicable limitationsperiod" (Alvarado v Beth Israel Med.Ctr., 60 AD3d 981, 982 [2009] [internal quotation marks omitted]; see Buran vCoupal, 87 NY2d at 180).
Here, the plaintiff failed to raise a triable issue of fact as to the third prong of the relation-backdoctrine. The record establishes that Nazaire was no longer working at the defendant hospital oremployed by the defendant professional corporation at the time of the commencement of the actionagainst those entities, and there is no evidence that he had actual or constructive knowledge within thelimitations period of the commencement of the action against them. Accordingly, the plaintiff failed toraise a triable issue of fact as to whether Nazaire knew or should have known that, but for a mistake bythe plaintiff, the action would have been commenced against him as well (see Boodoo v AlbeeDental Care, 67 AD3d at 718; Alvarado v Beth Israel Med. Ctr., 60 AD3d at 983; Shapiro v Good Samaritan Regional Hosp. Med.Ctr., 42 AD3d 443, 444-445 [2007]).
In light of our determination, Nazaire's remaining contentions have been rendered academic.Prudenti, P.J., Angiolillo, Belen and Sgroi, JJ., concur.