Giambrone v. Kings Harbor Multicare Ctr.

• Decision Date: 21 March 2013
• Citation: 2013 N.Y. Slip Op. 01898,104 A.D.3d 546,961 N.Y.S.2d 157
• Parties: Benedetto GIAMBRONE, et al., Plaintiffs–Respondents, v. KINGS HARBOR MULTICARE CENTER, etc., Defendant–Appellant, Westchester Square Hospital, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 546

961 N.Y.S.2d 157

2013 N.Y. Slip Op. 01898

Benedetto GIAMBRONE, et al., Plaintiffs–Respondents,

v. KINGS HARBOR MULTICARE CENTER, etc., Defendant–Appellant,Westchester Square Hospital, et al., Defendants.

Supreme Court, Appellate Division, First Department, New York.

March 21, 2013.

Landman Corsi Ballaine & Ford P.C., New York (Gerald T. Ford of counsel), for appellant.

Law Office of William A. Gallina, PLLC, Bronx (Frank V. Kelly of counsel), for respondents.

SWEENY, J.P., SAXE, DeGRASSE, ABDUS–SALAAM, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 7, 2011, which granted plaintiff's motion to amend the complaint against defendant Kings Harbor Multicare Center (Kings Harbor) to name his wife as an additional plaintiff and to assert a 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 back to a spouse's medical malpractice complaint for purposes of the Statute of Limitations pursuant to CPLR 203(f). We hold that it does.

Plaintiff Benedetto Giambrone was a patient at defendant Westchester Square Hospital (Westchester Square) during which time he underwent surgery and is alleged to have developed a sacral wound. He was discharged to defendant Kings Harbor, where he underwent rehabilitation. In August 2009, plaintiff commenced a medical malpractice action against Kings Harbor alleging that they failed to properly treat his wound, which had progressed to a stage IV decubitus ulcer by the time of his discharge from Kings Harbor. Plaintiff's spouse, Girolama, was not named in the complaint and no claim was asserted on her behalf.

In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square (which action was later consolidated with the action against Kings Harbor), in which Mrs. Giambrone was a named plaintiff and a derivative claim was asserted on her behalf. Kings Harbor subsequently filed a third-party complaint against Westchester Square for contribution and indemnification. Approximately seven weeks after the statute of limitations had expired in the Kings Harbor action, Mr. Giambrone moved pursuant to CPLR 3025(b) for leave to amend the complaint against Kings Harbor to assert a derivative cause of action on behalf of his wife, and the motion was granted.

The motion court properly exercised its discretion in granting leave to amend. The original complaint placed Kings Harbor on notice of the underlying transaction ( seeCPLR 203[f]; De'Leone v. City of New York, 45 A.D.3d 254, 255, 845 N.Y.S.2d 241 [1st Dept. 2007]. We are in accord with the Third Department'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 allow the addition of a plaintiff's derivative cause of action” ( Anderson v. Carney, 161 A.D.2d 1002, 1003, 557 N.Y.S.2d 575 [1990] ). We disagree with the cases holding that a spouse's derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f) ( see e.g. Dowdall v. General Motors Corp., 34 A.D.3d 1221, 1222, 823 N.Y.S.2d 723 [4th Dept. 2006]; Lucido v. Vitolo, 251 A.D.2d 383, 384, 672 N.Y.S.2d 818 [2d Dept. 1998] ).

As the Court of Appeals held in Matter of Greater N.Y. Health Care Facilities Assn. v. DeBuono, 91 N.Y.2d 716, 674 N.Y.S.2d 634, 697 N.E.2d 589 [1998], a case involving an analogous issue regarding whether the claims of proposed intervenors could be properly related back to the filing of a CPLR article 78 petition:

“We conclude that a party may be permitted to intervene and relate its claim back if the proposed intervenor's claim and that of the original petitioner are based on the same transaction or occurrence. Also, the proposed intervenor and the original petitioner must be so closely related that the original petitioner's claim would have given the respondent notice of the proposed intervenor's specific claim so that the imposition of the additional claim would not prejudice the respondent. Thus, a stranger could not intervene in a pending proceeding to interpose an otherwise time-barred claim.” (91 N.Y.2d at 721, 674 N.Y.S.2d 634, 697 N.E.2d 589)

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 alleged malpracticethat is the basis for her husband's claim. The plaintiffs are so closely related that Mr. Giambrone's claim would have given Kings Harbor notice of the proposed specific 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...