Mondello v. New York Blood Center-Greater New York Blood Program, CENTER--GREATER

Citation80 N.Y.2d 219,590 N.Y.S.2d 19
Decision Date22 October 1992
Docket NumberCENTER--GREATER
Parties, 604 N.E.2d 81 Peter MONDELLO, Individually and as Administrator of the Estates of Diane Mondello and Another, Deceased, Respondent, v. NEW YORK BLOODNEW YORK BLOOD PROGRAM et al., Appellants, et al., Defendants.
CourtNew York Court of Appeals

Brody & Fabiani, New York City (Roger K. Solymosy, Ellen S. Davis and Neil Brody, of counsel), for New York Blood Center--Greater New York Blood Program, appellant.

Martin, Clearwater & Bell, New York City (Barbara D. Goldberg and Kathleen M. Beck, of counsel), for the New York Hosp., appellant.

Theodore H. Friedman, P.C., and Dominique Penson, New York City, for respondent.

Kopff, Nardelli & Dopf, New York City (Martin B. Adams, of counsel), for Hospital Underwriters Mutual Insurance Company, amicus curiae.

Kornstein Veisz & Wexler, New York City (Marvin Wexler and Geoffrey Kaiser, of counsel), for FOJP Service Corp., amicus curiae.

Mark Thomas, Albany, for Hosp. Ass'n of New York State and another, amici curiae.

OPINION OF THE COURT

BELLACOSA, Judge.

This legal controversy, still at its early but critical motion stages, originates with the deaths, apparently of complications from AIDS-related diseases, of an infant child in late 1986 and her mother in early 1987. In 1984, the mother received intravenous transfusions of apparently HIV-infected blood. Her widower instituted an action in 1987 against defendant-appellant New York Hospital (Hospital) and several physicians on behalf of himself and his deceased spouse's and daughter's estates. Insofar as relevant to the singular Statute of Limitations issue before us in this case, the 1987 complaint was amended in 1989 to add the New York Blood Center (Blood Center) as a defendant.

At this juncture, we must decide whether the wrongful death causes of action against the Blood Center were started too late and are thus time barred. Unless the defendant Hospital and putative defendant Blood Center are "united in interest" within the meaning of CPLR 203(b) and Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407, the wrongful death causes of action against the party added in 1989, defendant Blood Center, are concededly untimely and cannot relate back to the timely commenced action against defendant Hospital.

Supreme Court determined that the parties were not united in interest and dismissed as to the Blood Center. The Appellate Division reversed (175 A.D.2d 718, 573 N.Y.S.2d 665). We agree with Supreme Court's dismissal of the wrongful death causes of action against the Blood Center on the ground that the Hospital and Blood Center are not united in interest for purposes of avoiding the pertinent time bar.

I.

Diane Mondello suffered a placental abruption in November 1984, which caused the death of the near-term child she was carrying at that time. In the course of being treated in the New York Hospital under emergency circumstances for this and subsequent complications, she was given a large number of blood transfusions. It eventually became known and undisputed that the blood and blood parts which she received were collected, tested and provided by the Blood Center. Prior to being used in her treatment, the blood was routed through the Hospital's licensed and accredited blood bank. About a year and a half later, Mondello gave birth to a daughter. The child died six months later in December 1986, and the mother died less than a month after that in January 1987. The apparent cause of death for both victims was complications associated with AIDS.

The surviving spouse and father brought suit in July 1987, against New York Hospital and several physicians, alleging negligence in the "medical care, treatment and services provided" to the mother and daughter, and for their wrongful deaths. In a bill of particulars, plaintiff set forth the distinct theory that the Hospital had not properly collected and screened the blood used in the transfusions to the mother in connection with the 1984 emergency treatment.

In May 1989, plaintiff served a notice for discovery and inspection to trace the source of the transfused blood. Counsel for the New York Hospital, in June 1989, identified the Blood Center as the source. Plaintiff promptly amended his original complaint against the Hospital in an attempt to add the Blood Center as a defendant and to state additional causes of action against the Hospital. A new, separate complaint was also initiated against the Blood Center. In both complaints, the Blood Center was charged under theories of negligence, including the "testing, manufacture, inspection, distribution, promotion and sale" of blood products.

Supreme Court dismissed those causes of action against the Blood Center which sounded in strict product liability and breach of warranty, noting that, by statute, the collection, processing and dispensing of blood is a "public health service" and not a "sale of such blood or blood derivative, for any purpose * * * whatsoever" (Public Health Law § 580[4]. That court, however, declined on prematurity grounds to dismiss causes against the Blood Center sounding in negligence for loss of services and for conscious pain and suffering. These were deemed governed by the "toxic substance" discovery rule of CPLR 214-c and, thus, additional disclosure would be necessary to ascertain the dispositive discovery date.

The only part of Supreme Court's ruling now before us is the dismissal of the wrongful death causes of action against the defendant Blood Center on Statute of Limitations grounds. The court noted that the two-year bar of EPTL 5-4.1 would apply to those actions, unless plaintiff could demonstrate that the Blood Center and the Hospital were united in interest within the meaning of CPLR 203(b). If such unity of interest were present, the amended and new complaints of 1989 would relate back for Statute of Limitations purposes to the date of the originally commenced action in 1987. The court concluded, however, that the Hospital and Blood Center were "at most joint tortfeasors and not parties united in interest."

The Appellate Division, First Department, reversed the dismissal of the wrongful death causes of action (175 A.D.2d 718, 573 N.Y.S.2d 665). It adopted and applied the relation back test formulated by the Appellate Division, Second Department, in Brock v. Bua, 83 A.D.2d 61, 69, 443 N.Y.S.2d 407, supra, which embossed the bare language of CPLR 203(b) with a three-pronged application. The Appellate Division found all three prongs satisfied in this case.

Its analysis of the second prong, unity of interest of the defendant parties, has emerged as the central dispositive focus of this appeal. The Appellate Division noted that unity of interest will generally be found where one of the parties is vicariously liable for the conduct of the other (Raschel v. Rish, 69 N.Y.2d 694, 512 N.Y.S.2d 22, 504 N.E.2d 389). It found vicarious liability between the Hospital and the Blood Center rooted in a perceived State policy reflected in certain regulations of the New York State Department of Health (175 A.D.2d, at 722, 573 N.Y.S.2d 665, supra ). These regulations, among other things, declare that "[t]he governing body [of the hospital] shall be responsible for services furnished in the hospital whether or not they are furnished by outside entities under contracts" (10 NYCRR 405.2[h] [emphasis added]. The Appellate Division thus found it unnecessary to determine whether, "even in the absence of these regulatory provisions, the facts of this case might present an exception to the general rule that parties are not liable for the negligence of independent contractors either because plaintiff reasonably looked only to the Hospital for the performance of this service * * * or because the harm caused arose from a danger inherent in the work" (175 A.D.2d, at 722, 573 N.Y.S.2d 665, supra ). We find it necessary to address and resolve the latter questions because plaintiff now concedes that the regulation relied on by the parties and Appellate Division up to this point in the litigation was not in effect at the relevant time at issue. It simply is not dispositive in this case.

II.

The CPLR 203(b) relation back rule provides in pertinent part that a "claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest * * * when: 1. the summons is served upon the defendant" (compare, Shaw v. Cock, 78 N.Y. 194 [1879]. The Appellate Division, in Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407, supra, gave the rule a three-prong specificity, patterned largely after the Federal "relation back" test codified in rule 15(c) of the Federal Rules of Civil Procedure (see generally, 1 Weinstein-Korn-Miller, N.Y.Civ.Prac. p 203.05, at 2-92, 2-93; compare also, Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 476-477, 497 N.Y.S.2d 890, 488 N.E.2d 820). The Brock test examines whether (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement; and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against the additional party united in interest as well (Brock v. Bua, supra, 83 A.D.2d at 69, 443 N.Y.S.2d 407). All three features must be met for the statutory relation back remedy to be operative.

We endorse the Brock test and apply it in this case, concluding essentially that the second prong is not met. Because we conclude that the Hospital cannot be held vicariously liable for the alleged negligence of the Blood Center in the discharge of the Blood Center's discrete...

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