| Stevens v Winthrop S. Nassau Univ. Health Sys., Inc. |
| 2011 NY Slip Op 08140 [89 AD3d 835] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Nancy Stevens, Individually and as Administratrix of the Estate ofJames Homer Stevens, Deceased, Appellant, v Winthrop South Nassau UniversityHealth System, Inc., et al., Defendants. Nisha Sethi, M.D., NonpartyRespondents. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., and Albanese & Albanese, LLP (MauroLilling Naparty, LLP, Great Neck, N.Y. [Caryn L. Lilling and Katherine Herr Solomon], ofcounsel), for nonparty respondents (one brief filed).
In an action to recover damages for medical malpractice, wrongful death, and lack ofinformed consent, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County(Phelan, J.), dated August 24, 2010, which denied her motion pursuant to CPLR 203 (b) and3025 (b) for leave to amend the complaint to add Nisha Sethi and Shannan Tarrer as defendants.
Ordered that the order is affirmed, with costs.
From July 20, 2005, to July 22, 2005, the plaintiff's decedent, James Homer Stevens(hereinafter the decedent), was a patient at the defendant South Nassau Communities Hospital(hereinafter South Nassau). The hospital records reveal that, during the course of hishospitalization, the decedent was seen by several physicians, including nonparties Nisha Sethiand Shannan Tarrer.
On or about March 28, 2007, the plaintiff commenced the instant action to recover damagesfor medical malpractice, wrongful death, lack of informed consent, and loss of services against,among others, South Nassau. Significantly, notwithstanding the fact that Sethi and Tarrer wereclearly identified in the hospital records as having seen the decedent, neither Sethi nor Tarrerwere named as defendants. In June 2010, close to five years after the subject hospitalization andmore than three years after the commencement of the instant action, the plaintiff moved pursuantto CPLR 203 (b) and 3025 (b) for leave to amend the complaint to add Sethi and Tarrer asdefendants. Although the statute of limitations had expired with regard to Sethi and Tarrer, theplaintiff argued that the relation-back doctrine applied. The Supreme Court denied the motion,applying the doctrine [*2]of laches. Further, contrary to thisCourt's holding in Lucido vMancuso (49 AD3d 220, 229 [2008]), the Supreme Court erroneously faulted theplaintiff for failing to submit an affidavit of merit. We affirm, albeit for reasons different fromthose stated by the Supreme Court.
"The relation-back doctrine, which is codified in CPLR 203 (b), allows a claim assertedagainst a defendant in an amended complaint to relate back to claims previously asserted againsta codefendant for statute of limitations purposes where the two defendants are 'united in interest'" (Shapiro v Good Samaritan RegionalHosp. Med. Ctr., 42 AD3d 443, 444 [2007], quoting Buran v Coupal, 87 NY2d173, 177 [1995]; see Matter of Murphyv Kirkland, 88 AD3d 267 [2011]). In order for a claim asserted against a new defendantto relate back to the date the claim was filed against another defendant, the plaintiff mustestablish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) thenew defendant is united in interest with the original defendant, and by reason of that relationshipcan be charged with notice of the institution of the action such that he or she will not beprejudiced in maintaining a defense on the merits; and (3) the new defendant 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 him or her as well (see Buran v Coupal, 87NY2d at 178; Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80NY2d 219 [1992]; Matter of Adler vHooper, 87 AD3d 633 [2011]; Lopez v Wyckoff Hgts. Med. Ctr., 78 AD3d 664, 665 [2010])."The 'linchpin' of the relation-back doctrine is whether the new defendant had notice within theapplicable limitations period" (Alvaradov Beth Israel Med. Ctr., 60 AD3d 981, 982 [2009]).
Here, assuming that the plaintiff satisfied the first two prongs of the three-part test, theplaintiff failed to satisfy the third prong. The record is devoid of any evidence that Sethi or Tarrerwas aware that a malpractice action had been commenced against South Nassau until they weresubpoenaed to testify as nonparty witnesses. At the time of their nonparty depositions, over fouryears had elapsed since the subject hospitalization. Further, the plaintiff failed to establish thatSethi or Tarrer knew or should have known that, but for a mistake by the plaintiff as to theidentity of the proper parties, this action would have been brought against them as well (see Karagiannis v North Shore Long Is.Jewish Health Sys., Inc., 80 AD3d 569, 569-570 [2011]; Comice v Justin's Rest., 78 AD3d641, 641-642 [2010]; Alvarado v Beth Israel Med. Ctr., 60 AD3d at 983; Shapirov Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444-445). Accordingly, underthese circumstances, the plaintiff's motion pursuant to CPLR 203 (b) and 3025 (b) for leave toamend the complaint to add Sethi and Tarrer as defendants was properly denied.
In light of our determination, we do not consider the plaintiff's remaining contention. Rivera,J.P., Florio, Dickerson and Lott, JJ., concur.