Nardi v. Hirsh

• Decision Date: 05 May 1998
• Citation: 672 N.Y.S.2d 334,250 A.D.2d 361
• Parties: , 1998 N.Y. Slip Op. 4281 Maureen NARDI, et al., Plaintiffs-Appellants, v. David M. HIRSH, M.D., et al., Defendants, and Richard Memoli, M.D., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 334

672 N.Y.S.2d 334

250 A.D.2d 361, 1998 N.Y. Slip Op. 4281

Maureen NARDI, et al., Plaintiffs-Appellants, v. David M. HIRSH, M.D., et al., Defendants and Richard Memoli, M.D., et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

May 5, 1998.

Alexander J. Wulwick, for Plaintiffs-Appellants.

Angela Thompson-Tinsley, for Defendants-Respondents.

Before MILONAS, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered January 24, 1997, which, as limited by plaintiff's brief, granted the motion of defendants Richard Memoli, M.D., and Richard Memoli, M.D., P.C., for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

On September 21, 1989, Dr. David M. Hirsh and Dr. Richard Memoli performed surgery on plaintiff wife Maureen Nardi's right knee at Westchester Square Hospital. Plaintiff's last post-operative visit to Dr. Memoli was on July 18, 1990. The history, or "procedural quagmire," as characterized by the IAS court, of plaintiffs' subsequent attempt to sue defendants in connection with the surgery is the heart of the matter on appeal, and the material facts are not in dispute. After apparently abandoning a first attempt to bring an action in March 1992 (the specifics of which are not relevant to this appeal), plaintiffs commenced the instant action sounding in medical malpractice and lack of informed consent on December 3, 1992, by the filing of a summons and complaint, naming as defendants Dr. David Hirsh, University Orthopaedic Specialty Associates, Dr. Richard Memoli and Westchester Square Hospital. These defendants were not served prior to the expiration of the Statute of Limitations (January 18, 1993).

Thereafter, on or about March 8, 1993, plaintiffs served a summons and amended verified complaint, which added defendants Dr. Hirsh, M.D., P.C., Dr. Memoli, M.D., P.C., and Dr. Neil Cobelli, and deleted the previously-named defendant hospital. This summons and amended verified complaint had no index number and were not filed with the court, and plaintiffs did not seek leave to amend the caption of their original papers or serve the amended pleading naming additional defendants.

On or about March 25, 1993, the Memoli defendants (Dr. Memoli and Memoli, P.C.), the respondents in the matter before us, served a verified answer to the amended complaint. By this answer, they admitted treating plaintiff from January 1989 until July 18, 1990 and raised the affirmative defense of the Statute of Limitations. In November 1995, plaintiff wife was deposed. A year later, in November 1996, appellants moved for summary judgment on the ground that this action had not been timely or properly commenced. Plaintiffs cross moved for an order deeming the summons and amended verified complaint filed nunc pro tunc as of December 3, 1992, and permitting them to file and serve a second verified amended complaint alleging that appellants' treatment of plaintiff wife ended on November 19, 1990.

By written decision dated January 6, 1997, the IAS court granted respondents' motion and dismissed the complaint as against them. First, the court observed that because the last date of treatment was July 18, 1990, the 2 1/2 year statute of limitations for medical malpractice actions pursuant to CPLR 214-a had expired on January 18, 1993. The court then found that the Memoli defendants had not been given notice of the pendency of this action until March 8, 1993, after the expiration of the Statute of Limitations, and that in any event, that notice had been "in the form of a defective pleading." That is, according to the court's reasoning, the amended complaint was defective for failure to file it, while the original complaint, which was filed but not served, failed to provide notice to either Memoli defendant. The court denied plaintiffs' application to deem the amended complaint timely filed nunc pro tunc as "tantamount to an application to extend the statute of limitations." Finally, the court rejected the allegation that Dr. Memoli's treatment of plaintiff had extended beyond July 18, 1990, the date of plaintiff wife's last post-operative visit.

We find that the IAS court erred in granting summary judgment and dismissing the complaint as to respondents and turn first to the disposition of a prior, similar motion by the Hirsh defendants (Dr. Hirsh and Hirsh, P.C.).

On the Hirsh motion, decided September 24, 1996, the IAS court granted summary judgment only to the extent of dismissing the complaint as to Hirsh, P.C., and Dr. Cobelli, both named for the first time in the amended complaint of March 8, 1993. In its decision, the IAS court stated that the action was commenced against the four original defendants with the filing of the summons and complaint on December 3, 1992, and that, although proof of service as to those four defendants had never been filed, they had appeared and answered that complaint. That appearance within 120 days of the filing, the court correctly noted, "vitiate[d] the plaintiff's failure to file proof of service of the complaint, or of the amended complaint" (CPLR 306-b[a] ) Thus, as to defendant Dr. Hirsh personally, the motion to dismiss was denied. However, as to Hirsh, P.C., the court...