Cole v. Tat-Sum Lee
| Citation | 765 N.Y.S.2d 89,309 A.D.2d 1165 |
| Court | New York Supreme Court — Appellate Division |
| Decision Date | 02 October 2003 |
| Parties | ROBERT COLE et al., as Administrators of the Estate of SCOTT COLE, Deceased, Respondents,<BR>v.<BR>TAT-SUM LEE, M.D., et al., Defendants, and<BR>JOHN FITZGERALD, M.D., Appellant. |
Present — Pigott, Jr., P.J., Pine, Wisner and Kehoe, JJ.
It is hereby ordered that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs, the cross motion is denied, the motion is granted in its entirety and the complaint and amended complaint against defendant John Fitzgerald, M.D. are dismissed.
We agree with John Fitzgerald, M.D. (defendant) that Supreme Court erred in denying that part of his motion seeking dismissal of the wrongful death cause of action against him. Upon plaintiffs' consent, the court granted that part of the motion of defendant seeking dismissal of the medical malpractice cause of action against him as time-barred, and we conclude that the wrongful death cause of action against him is time-barred as well.
Plaintiffs' decedent died on July 1, 1999. A summons and complaint were filed on June 6, 2001 alleging the two causes of action against several defendants, including James Fitzgerald, M.D. and his professional corporation, Lakeshore Orthopedic Group, P.C. Defendant was not named. No defendants were served until after the court granted plaintiffs' ex parte motion for an extension of time for service. Service was made on most of the original defendants on October 16, 2001. After plaintiffs learned that Dr. James Fitzgerald had not treated decedent, they served defendant with a copy of the original summons on which "James" and the accompanying address were crossed out and the words "John" and "John Fitzgerald" along with defendant's address were handwritten in place of "James" and the prior address. The complaint served with the altered summons was the original complaint, still alleging acts by James.
Defendant moved to dismiss the complaint against him, alleging among other things that the court had not obtained personal jurisdiction over him because he had never been properly served with a summons and complaint and the order granting the extension of time for service did not name him as a defendant. He argued that the name "James" was not a mere misnomer for him but that plaintiffs were attempting to add him as a new party. He contended that the failure to obtain jurisdiction over him was fatal and could not be corrected because the statute of limitations for each cause of action had expired.
Plaintiffs cross-moved for leave to "correct and amend" their summons and complaint to substitute John for James. Alternatively, plaintiffs sought leave "to file and serve a Supplemental Summons and Amended Complaint." In their view, a supplemental summons would confer jurisdiction because defendant was united in interest with defendant Brooks Memorial Hospital (Hospital), which had been properly served within the extension of time for service granted by the court.
In response, defendant submitted an affidavit asserting among other things that at no time before he was served on December 10, 2001 was he aware that plaintiffs were attempting to commence an action against him.
The court erred in denying that part of defendant's motion with respect to the wrongful death cause of action and in granting plaintiffs' cross motion for leave "to amend the summons and complaint." By granting leave to amend the summons and complaint and directing the filing and serving of the amended summons and complaint, the court implicitly denied plaintiffs' alternative request for leave to file and serve a supplemental summons and amended complaint upon defendant. The court recognized that the summons was not a proper supplemental summons and had not been properly amended, but nevertheless determined that "it was sufficient to put [defendant] on notice of the action" and thus that the "misnomer" did not cause him any prejudice. We disagree with the court that the error in the original papers was a mere misnomer. Dr. James Fitzgerald is an orthopedist and both Dr. James Fitzgerald and his professional corporation were named in the original summons and complaint and were served with the original summons and complaint. There is no indication that plaintiffs meant to commence an action against a different Dr. Fitzgerald. Plaintiffs concede that only after serving Dr. James Fitzgerald did they learn that it was defendant who provided care and treatment to decedent. Therefore, "`[t]his is not a case where a party is misnamed * * *; rather...
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