| Karagiannis v North Shore Long Is. Jewish Health Sys., Inc. |
| 2011 NY Slip Op 00190 [80 AD3d 569] |
| January 11, 2011 |
| Appellate Division, Second Department |
| Spina D. Karagiannis, as Administrator of the Estate of SotiriosKaragiannis, Deceased, et al., Appellants, v North Shore Long Island Jewish Health Systems,Inc., et al., Respondents. |
—[*1] Costello, Shea & Gaffney, LLP, New York, N.Y. (Sylvia E. Lee and Steven E. Garry of counsel),for respondents.
In an action to recover damages for medical malpractice and wrongful death, etc., the plaintiffsappeal from an order of the Supreme Court, Queens County (O'Donoghue, J.), entered June 22, 2010,which denied their motion pursuant to CPLR 3025 (b) and 1003 for leave to amend the complaint toadd a certain person as a defendant.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the plaintiffs' motion for leave to amend the complaint to adda certain person as a defendant, as the applicable statutes of limitations had expired prior to thedetermination of the motion (see Comice vJustin's Rest., 78 AD3d 641 [2010]; Battle v Brookhaven Nursing Home, 7 AD3d 553, 554 [2004]; Matter of Lodge v D'Aliso, 2 AD3d525, 526 [2003]). Although the plaintiffs' motion was made prior to the expiration of the statutesof limitations, it did not toll the running of the statutes of limitations because the plaintiffs did not file acopy of the proposed supplemental summons with the Supreme Court when they filed their motion(see Battle v Brookhaven Nursing Home, 7 AD3d at 554; Matter of Lodge v D'Aliso,2 AD3d at 526; cf. Perez v Paramount Communications, 92 NY2d 749, 754-755 [1999]).The plaintiffs failed to demonstrate that the relation-back doctrine applied, as they failed to establishthat the person they sought to add as a party knew or should have known that, but for a mistake by theplaintiffs as to the identity of the proper parties, the action would have also been brought against him(see Alvarado v Beth Israel Med. Ctr.,60 AD3d 981, 982-983 [2009]; Marinov Westchester Med. Group, P.C., 50 AD3d 861, 862 [2008]; Shapiro v Good Samaritan Regional Hosp. Med.Ctr., 42 AD3d 443, 444-445 [2007]). Rivera, J.P., Dickerson, Lott and Sgroi, JJ., concur.