| Giambrone v Kings Harbor Multicare Ctr. |
| 2013 NY Slip Op 01898 [104 AD3d 546] |
| March 21, 2013 |
| Appellate Division, First Department |
| Benedetto Giambrone et al., Respondents, v KingsHarbor Multicare Center, Appellant, et al., Defendants. |
—[*1] Law Office of William A. Gallina, PLLC, Bronx (Frank V. Kelly of counsel), forrespondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 7, 2011,which granted plaintiff's motion to amend the complaint against defendant Kings HarborMulticare Center (Kings Harbor) to name his wife as an additional plaintiff and to asserta derivative cause of action on her behalf for loss of consortium and spousal services,unanimously affirmed, without costs.
The question presented is whether a derivative claim for loss of services relates backto a spouse's medical malpractice complaint for purposes of the Statute of Limitationspursuant to CPLR 203 (f). We hold that it does.
Plaintiff Benedetto Giambrone was a patient at defendant Westchester SquareHospital (Westchester Square) during which time he underwent surgery and is alleged tohave developed a sacral wound. He was discharged to defendant Kings Harbor, where heunderwent rehabilitation. In August 2009, plaintiff commenced a medical malpracticeaction against Kings Harbor alleging that they failed to properly treat his wound, whichhad progressed to a stage IV decubitus ulcer by the time of his discharge from KingsHarbor. Plaintiff's spouse, Girolama, was not named in the complaint and no claim wasasserted on her behalf.
In December 2010, Mr. Giambrone commenced a separate medical malpracticeaction against Westchester Square (which action was later consolidated with the actionagainst Kings Harbor), in which Mrs. Giambrone was a named plaintiff and a derivativeclaim was asserted on her behalf. Kings Harbor subsequently filed a third-partycomplaint against Westchester Square for contribution and indemnification.Approximately seven weeks after the statute of limitations had expired in the KingsHarbor action, Mr. Giambrone moved pursuant to CPLR 3025 (b) for leave to amend thecomplaint against Kings Harbor to assert a derivative cause of action on behalf of hiswife, and the motion was granted.
The motion court properly exercised its discretion in granting leave to amend. Theoriginal complaint placed Kings Harbor on notice of the underlying transaction(see CPLR 203 [f]; De'Leone v City of New York, 45 AD3d 254, 255 [1stDept 2007]). We are in accord with [*2]the ThirdDepartment's view that "[i]n the absence of any prejudice and under these circumstances,Supreme Court should be permitted to exercise that same discretion which would allowthe addition of a plaintiff's derivative cause of action" (Anderson vCarney, 161 AD2d 1002, 1003 [1990]). We disagree with the cases holding that aspouse's derivative claim cannot be added to a complaint through the relation backprovision of CPLR 203 (f) (seee.g. Dowdall v General Motors Corp., 34 AD3d 1221, 1222 [4th Dept 2006];Lucido v Vitolo, 251 AD2d 383, 384 [2d Dept 1998]).
As the Court of Appeals held in Matter of Greater N.Y. Health Care FacilitiesAssn. v DeBuono (91 NY2d 716 [1998]), a case involving an analogous issueregarding whether the claims of proposed intervenors could be properly related back tothe filing of a CPLR article 78 petition: "We conclude that a party may be permitted tointervene and to relate its claim back if the proposed intervenor's claim and that of theoriginal petitioner are based on the same transaction or occurrence. Also, the proposedintervenor and the original petitioner must be so closely related that the originalpetitioner's claim would have given the respondent notice of the proposed intervenor'sspecific claim so that the imposition of the additional claim would not prejudice therespondent. Thus, a stranger could not intervene in a pending proceeding to interpose anotherwise time-barred claim" (91 NY2d at 721).
While these criteria were not met by the proposed intervenors in DeBuono,they are met in this case. Mrs. Giambrone's claim is based on the same allegedmalpractice that is the basis for her husband's claim. The plaintiffs are so closely relatedthat Mr. Giambrone's claim would have given Kings Harbor notice of the proposedspecific claim. And, notably, Kings Harbor was aware that Mr. Giambrone had a spouse,as she had brought a derivative claim in the related lawsuit against Westchester Square,had participated in the mediations with Kings Harbor, and Mr. Giambrone had testified athis deposition that he was married.
Courts holding that derivative claims cannot relate back to the original complainthave reasoned that the original pleading fails to give defendant notice of theclaim (see e.g. Lucido v Vitolo at 384; Dowdall v General MotorsCorp. at 1222). However, in our view, the salient inquiry is not whether defendanthad notice of the claim, but whether, as the statute provides, the original pleading gives"notice of the transactions, occurrences . . . to be proved pursuant to theamended pleading" (CPLR 203 [f]).
In denying the motion to amend on the basis that the original pleading did not givenotice of the claim, these courts have disregarded the purpose of the relation backdoctrine, which "enables a plaintiff to correct a pleading error—by adding either anew claim or a new party—after the statutory limitations period has expired"(Buran v Coupal, 87 NY2d 173, 177 [1995] [trial court acted within itsdiscretion to permit relation back of original complaint against spouse to newly addeddefendant]; compare FazioMasonry, Inc. v Barry, Bette & Led Duke, Inc., 23 AD3d 748, 750 [3d Dept2005] [relation back not permitted where new plaintiff's claims were independent oforiginal claims, in distinction from a derivative action of a spouse, where "defendants inthose cases knew, or reasonably could have known, that a derivative claim could arisefrom the original plaintiff('s) personal injury action( )"]).[*3]
Defendant's exposure to greater liability does notrequire denial of the motion to amend (see e.g. De'Leone, 45 AD3d 254[amendment of complaint to include derivative claim for future medical expensespermitted]; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23[1981] [regarding prejudice, "there must be some indication that the defendant has beenhindered in the preparation of his case or has been prevented from taking some measurein support of his position"]). Here, defendant, "from the outset of [its] involvement in thelitigation, [had] sufficient knowledge to motivate the type of litigation preparation andplanning needed to defend against the entirety of the particular plaintiff's situation"(Vincent C. Alexander, 2006 Supp Practice Commentaries, McKinney's Cons Laws ofNY, Book 7B, CPLR C203:11, 2013 Pocket Part at 69). Concur—Sweeny, J.P.,Saxe, DeGrasse, Abdus-Salaam and Feinman, JJ.