Roseman v. Baranowski

• Decision Date: 06 August 2014
• Citation: 120 A.D.3d 482,2014 N.Y. Slip Op. 05635,990 N.Y.S.2d 621
• Parties: Barry S. ROSEMAN, etc., appellant, v. Robert BARANOWSKI, etc., et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 482

990 N.Y.S.2d 621

2014 N.Y. Slip Op. 05635

Barry S. ROSEMAN, etc., appellant,

v.Robert BARANOWSKI, etc., et al., respondents, et al., defendants.

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

Aug. 6, 2014.

Levine & Grossman, Mineola, N.Y. (Steven Sachs of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Stephen J. Barrett and Arshia Hourizadeh of counsel), for respondents.

PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In a consolidated action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated June 27, 2012, which denied his motion pursuant to CPLR 203 and 3025(b) for leave to serve a supplemental summons and amended complaint adding Seth Persky as a defendant.

ORDERED that the order is reversed, on the law and the facts, with costs, and the plaintiff's motion pursuant to CPLR 203 and 3025(b) for leave to serve a supplemental summons and amended complaint adding Seth Persky as a defendant is granted.

On March 12, 2008, the plaintiff's decedent underwent a colonscopy at Long Island Digestive Disease Consultants, P.C. (hereinafter Long Island Digestive). The following day, she was admitted to John T. Mather Memorial Hospital (hereinafter the hospital) with internal bleeding. She was discharged from the hospital on March 15, 2008, but, three days later, after experiencing additional bleeding, she was readmitted to the hospital. The decedent's condition continued to deteriorate during this second admission and, on March 20, 2008, she died.

The plaintiff commenced an action against the physician Robert Baranowski, Long Island Digestive, and the hospital on or about November 30, 2009. Thereafter, on or about March 15, 2010, he commenced an action against Port Jefferson Internal Medicine Associates, P.C. (hereinafter Internal Medicine Associates), and the physicians Eugene Coman and Richard Balter. The two actions were consolidated by order dated July 1, 2010.

On or about March 20, 2012, after conducting depositions of Baranowski and Coman, among others, the plaintiff moved for an order pursuant to CPLR 3025(b) for leave to serve a supplemental summons and amended complaint adding the physician Seth Persky as a defendant. Recognizing that the limitations period for commencing a medical malpractice action against Persky had expired ( seeCPLR 214–a), the plaintiff also requested that, pursuant to CPLR 203(b), the claims assertedagainst Persky be deemed timely since they related back to the claims interposed against the previously-named defendants. The Supreme Court denied the motion and the plaintiff appeals. We reverse.

“The relation-back doctrine, which is codified in CPLR 203(b), allows a claim asserted against a defendant in an amended complaint to relate back to claims previously asserted against a codefendant for statute of limitations purposes where the two defendants are ‘united in interest’ ” ( Shapiro v. Good Samaritan Regional Hosp. Med. Ctr., 42 A.D.3d 443, 444, 840 N.Y.S.2d 94, quoting Buran v. Coupal, 87 N.Y.2d 173, 177, 638 N.Y.S.2d 405, 661 N.E.2d 978;see Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., 89 A.D.3d 835, 836, 932 N.Y.S.2d 514). In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have know that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well ( see Buran v. Coupal, 87 N.Y.2d at 178, 638 N.Y.S.2d 405, 661 N.E.2d 978;Mondello v. New York Blood Ctr.-Greater N.Y. Blood Program, 80 N.Y.2d 219, 590 N.Y.S.2d 19, 604 N.E.2d 81;Stevens v. Winthrop S. Nassau Univ. Health Sys., Inc., 89 A.D.3d at 836, 932 N.Y.S.2d 514;Lopez v. Wyckoff Heights Med. Ctr., 78 A.D.3d 664, 665, 913 N.Y.S.2d 230;Cardamone v. Ricotta, 47 A.D.3d 659, 850 N.Y.S.2d 511). “The ‘linchpin’ of the relation-back doctrine...