| Kirk v University OB-GYN Assoc., Inc. |
| 2013 NY Slip Op 01675 [104 AD3d 1192] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| Katelyn Kirk, an Infant, by Her Parent and NaturalGuardian, Christy A. Kirk, et al., Respondents, v University OB-GYNAssociates, Inc., Appellant, et al., Defendants. John Folk, M.D.,Appellant. |
—[*1] Greene & Reid, PLLC, Syracuse (James T. Snyder of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Onondaga County (James P. Murphy,J.), entered October 13, 2011. The order, inter alia, granted the motion of plaintiffs forleave to file and serve an amended summons and complaint to substitute John Folk, M.D.as a party.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiffs commenced this medical malpractice action seekingdamages for injuries sustained by Katelyn Kirk (infant plaintiff) during her delivery. Thecomplaint named as defendants the hospital where the delivery occurred, UniversityOB-GYN Associates, Inc., a medical practice group (University Associates), RobertSilverman, M.D., and "John Doe, M.D. and Jane Roe, M.D." (collectively, defendantphysicians). The complaint alleged that defendant physicians were employed by orassociated with University Associates and committed malpractice in their prenatal careand treatment of the infant plaintiff. Approximately one year after the expiration of thestatute of limitations, plaintiffs moved for leave to amend their complaint by substitutingnonparty John Folk, M.D.'s name in place of John Doe, M.D. Plaintiffs contended insupport of their motion that, although Dr. Silverman was the primary obstetrician forplaintiff Christy A. Kirk during her pregnancy, he was unavailable to deliver the infantplaintiff. Plaintiffs alleged that, after filing the complaint, they became aware that Dr.Folk, who was also employed by or associated with University Associates, was theattending physician who delivered the infant plaintiff and thus was "a proper party toth[e] action."
Contrary to the contention of University Associates and Dr. Folk (collectively,appellants), Supreme Court properly granted the motion. Plaintiffs met their burden of[*2]establishing the applicability of the relation backdoctrine (see generallyCardamone v Ricotta, 47 AD3d 659, 660 [2008]), and appellants failed to raisea triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]). The relation back doctrine, set forth in Brock v Bua (83 AD2d61, 68-71 [1981]), adopted by the Court of Appeals in Mondello v New York BloodCtr.—Greater N.Y. Blood Program (80 NY2d 219, 226 [1992]), and refined inBuran v Coupal (87 NY2d 173, 177-182 [1995]), allows the addition of a partyafter the expiration of the statute of limitations if (1) both claims arose out of the sameconduct, transaction, or occurrence, (2) the additional party is united in interest with theoriginal party, and by reason of that relationship can be charged with notice of theinstitution of the action such that he or she will not be prejudiced in maintaining adefense on the merits, and (3) the additional party knew or should have known that, butfor a mistake by the plaintiff as to the identity of the proper parties, the action wouldhave been brought against the additional party as well (see Buran, 87 NY2d at178; Doe v HMO-CNY, 14AD3d 102, 105 [2004]; see also CPLR 203 [b]). "[T]he 'linchpin' of therelation back doctrine [is] notice to the defendant within the applicable limitationsperiod" (Buran, 87 NY2d at 180).
Appellants do not dispute that the first prong of the relation back doctrine is satisfiedbecause the claims against Dr. Folk and the original defendants arise out of the sameoccurrence, i.e., the infant plaintiff's birth, and we conclude that the second prong issatisfied as well (see id. at 178-179). With respect to the third prong, the Court ofAppeals made it clear that "New York law requires merely mistake—not excusablemistake—on the part of the litigant seeking the benefit of the doctrine" (id.at 176). Appellants contend that here there was no mistake and only neglect on the partof plaintiffs. We agree with plaintiffs, however, that even if they were negligent, therewas still a mistake by plaintiffs in failing to identify Dr. Folk as a defendant.Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.