| Haidt v Kurnath |
| 2011 NY Slip Op 05883 [86 AD3d 935] |
| July 8, 2011 |
| Appellate Division, Fourth Department |
| Elizabeth L. Haidt, Respondent, v Joseph F. Kurnath,M.D., Defendant, and Henry Wengender et al., Appellants. |
—[*1] Faraci Lange, LLP, Rochester (Stephen G. Schwarz of counsel), forplaintiff-respondent.
Appeal from a judgment and order (one paper) of the Supreme Court, Monroe County (JohnJ. Ark, J.), entered December 28, 2010. The judgment and order, insofar as appealed from,denied that part of the motion of defendants Henry Wengender and Lynn Wengender seekingsummary judgment dismissing the first amended complaint against Lynn Wengender and grantedthat part of the cross motion of plaintiff seeking to dismiss Lynn Wengender's fifth affirmativedefense.
It is hereby ordered that the appeal by defendant Henry Wengender is dismissed and thejudgment and order is otherwise affirmed without costs.
Memorandum: Henry Wengender and Lynn Wengender (collectively, defendants) appeal, aslimited by their brief, from a judgment and order denying that part of their motion seekingsummary judgment dismissing the first amended complaint against Lynn Wengender (defendant)as time-barred and granting that part of plaintiff's cross motion to dismiss the fifth affirmativedefense as asserted by defendant, based on the statute of limitations. We note at the outset thatthe appeal by defendant Henry Wengender must be dismissed inasmuch as Supreme Courtgranted that part of defendants' motion seeking to dismiss the first amended complaint againsthim, and thus he is not "[a]n aggrieved party" (CPLR 5511).
We conclude that the court properly determined that the first amended complaint againstdefendant was not time-barred based upon the relation back doctrine. Pursuant to that doctrine,the claims asserted against a newly added defendant in an amended pleading may relate back toclaims previously asserted against another defendant for statute of limitations purposes wherethose defendants are united in interest (see Buran v Coupal, 87 NY2d 173, 177-178[1995]). In order for the relation back doctrine to apply, a plaintiff must establish that "(1) bothclaims arose out of [the] same conduct, transaction or occurrence, (2) the new party is united ininterest with the original defendant, and by reason of that relationship can be charged with suchnotice of the institution of the action that he [or she] will not be prejudiced in maintaining his [orher] defense on the merits and (3) the new party knew or should have known that, but for anexcusable [*2]mistake by plaintiff as to the identity of the properparties, the action would have been brought against him [or her] as well" (id. at 178[internal quotation marks omitted]; see Brock v Bua, 83 AD2d 61, 69 [1981]).
As defendant correctly concedes, plaintiff satisfied the first two prongs of the relation backtest. We reject defendant's contention, however, that plaintiff failed to satisfy the third prong ofthe relation back test, i.e., that defendant "knew or should have known that[,] but for a mistake bythe plaintiff as to the identity of the proper parties, the action would have been brought against[her] as well" (Morel v Schenker, 64AD3d 403, 403 [2009]; seeGoldstein v Brookwood Bldg. Corp., 74 AD3d 1801 [2010]). "[P]laintiff[ ] establishedthat [her] failure to include [defendant in the original complaint] . . . was a mistakeand not . . . the result of a strategy to obtain a tactical advantage" (Brown vAurora Sys., 283 AD2d 956, 957 [2001]; see Goldstein, 74 AD3d 1801; seegenerally Buran, 87 NY2d at 178). In support of her cross motion and in opposition todefendants' motion, plaintiff submitted evidence demonstrating that she did not have sufficientknowledge of defendant's role in prescribing the antibiotic when the alleged medical malpracticeoccurred or when the action was timely commenced against defendant Joseph F. Kurnath, M.D.,approximately 2½ years later. Rather, the testimony of plaintiff at her first deposition, morethan two years after the action was commenced against Dr. Kurnath, establishes that her"knowledge" of defendant's role was largely the result of leading questions by Dr. Kurnath'sattorney.
Defendant's further contention that she did not have "notice . . . within theapplicable limitations period" is unpreserved for our review (Buran, 87 NY2d at 180)and, in any event, that contention is without merit. We reject the dissent's conclusion that "theapplicable limitations period" must be so narrowly construed that it does not include the 120-dayperiod for service. Indeed, we note that defendant received notice of plaintiff's claim at the sametime as Dr. Kurnath, the original defendant.
All concur except Smith, J.P., and Peradotto, J., who dissent and vote to reverse thejudgment and order insofar as appealed from in accordance with the following memorandum.
Smith, J.P., and Peradotto, J. (dissenting in part). We agree with the majority that the appealby Henry Wengender should be dismissed. We conclude, however, that the first amendedcomplaint against Lynn Wengender (defendant) should be dismissed as time-barred because therelation back doctrine does not apply under the circumstances of this case, and we thereforerespectfully dissent in part. It is undisputed that the action was not commenced against defendantuntil after the expiration of the 2½-year statute of limitations applicable to medicalmalpractice actions (see CPLR 214-a). Thus, the claims against her must be dismissedunless they relate back to the claims asserted in the timely filed complaint against defendantJoseph F. Kurnath, M.D. It is well settled that "the three conditions that must be satisfied in orderfor claims against one defendant to relate back to claims asserted against another are that: (1)both claims arose out of [the] same conduct, transaction or occurrence, (2) the new party isunited in interest with the original defendant, and by reason of that relationship can be chargedwith such notice of the institution of the action that he [or she] will not be prejudiced inmaintaining his [or her] defense on the merits and (3) the new party knew or should have knownthat, but for an excusable mistake by plaintiff as to the identity of the proper parties, the actionwould have been brought against him [or her] as well" (Buran v Coupal, 87 NY2d 173,178 [1995] [internal quotation marks omitted]). After a defendant demonstrates that the statute oflimitations has expired, the plaintiff bears the burden of establishing that the relation backdoctrine applies (see Austin v Interfaith Med. Ctr., 264 AD2d 702, 703 [1999]). Weagree with the majority that plaintiff met her burden with respect to the first two prongs of theBuran test, but we conclude that she failed to meet her burden with respect to the thirdprong.
In support of defendants' motion seeking, inter alia, summary judgment dismissing the firstamended complaint against defendant as time-barred, defendants submitted the deposition [*3]testimony of plaintiff regarding her telephone conversation withdefendant prior to the time when defendant prescribed plaintiff the medication at issue.Defendants also submitted the deposition testimony of plaintiff that she read defendant's name onthe prescription bottle containing that medication. Defendants thereby demonstrated that plaintiffwas aware from the outset that defendant was involved in her treatment. "Thus, the failure toinclude [defendant] . . . in the timely commenced original suit was not the result ofa mistake as to the identity of the correct defendant, and [defendant] had no reason to think that[she] would have been named in the related action but for a mistake as to [her] identity" (Nani v Gould, 39 AD3d 508, 510[2007]; see also Cardamone vRicotta, 47 AD3d 659, 660-661 [2008]). In addition, because plaintiff was "fully awareof the existence of [defendant] . . . , [her] failure to join [defendant] was a mistakeof law, which is not the type of mistake contemplated by the relation[ ]back doctrine" (Doe v HMO-CNY, 14 AD3d 102,106 [2004] [internal quotation marks omitted]; see Matter of 27th St. Block Assn. vDormitory Auth. of State of N.Y., 302 AD2d 155, 165 [2002]).
Furthermore, "[i]t is well established that the linchpin of the relation back doctrine [is] noticeto the [proposed] defendant within the applicable limitations period" (Lostracco v Mt. St. Mary's Hosp. ofNiagara Falls, 38 AD3d 1312, 1312 [2007] [internal quotation marks omitted]; seeBuran, 87 NY2d at 180; Cole v Tat-Sum Lee, 309 AD2d 1165, 1167 [2003]). Here,the original complaint was not served upon Dr. Kurnath until after the expiration of the statute oflimitations. "Because no one was served until [after the statute of limitations expired], there is nobasis to conclude that defendant had any idea that a lawsuit was pending, much less that [she]would be among the named defendants," within the applicable limitations period (Cole,309 AD2d at 1167-1168).
Inasmuch as plaintiff failed to meet her burden with respect to the third prong of theBuran test, we would reverse the judgment and order insofar as appealed from, grant thatpart of defendants' motion seeking summary judgment dismissing the first amended complaintagainst defendant, deny that part of plaintiff's cross motion seeking to dismiss the fifthaffirmative defense as asserted by defendant and dismiss the first amended complaint against her.Present—Smith, J.P., Peradotto, Carni, Sconiers and Martoche, JJ.