Scheff v. St. Johns Episcopal Hosp.

• Decision Date: 09 December 1985
• Citation: 496 N.Y.S.2d 58,115 A.D.2d 532
• Parties: Norman W. SCHEFF, as Executor, etc., Appellant, v. ST. JOHN'S EPISCOPAL HOSPITAL, et al., Defendants, Edwar Rao Anala, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 58

496 N.Y.S.2d 58

115 A.D.2d 532

Norman W. SCHEFF, as Executor, etc., Appellant, v. ST. JOHN'S EPISCOPAL HOSPITAL, et al., Defendants Edwar Rao Anala, Respondent.

Supreme Court, Appellate Division Second Department.

Dec. 9, 1985.

Lupow, Grafstein & Frankfort, Deer Park, (Robert D. Frankfort, of counsel), for appellant.

Wortman, Fumuso, Kelly, DeVerna & Snyder, Huntington, (Roger B. Lawrence, of counsel), for respondent.

Before GIBBONS, J.P., and BRACKEN, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for wrongful death, plaintiff appeals from an order of the Supreme Court, Suffolk County (Robbins, J.), dated July 18, 1984, which granted the motion of defendant Anala for leave to amend his answer to interpose the affirmative defense of the Statute of Limitations as to the plaintiff's wrongful death cause of action.

Order reversed, with costs, and motion denied.

On October 18, 1981, the decedent, Joan Scheff, died following surgery. This wrongful death action by her husband, plaintiff Norman Scheff, was commenced in May 1983 by timely service upon various named defendants. However, defendant Dr. Edwar Rao Anala was not properly served. A joint answer dated July 15, 1983, interposed on behalf of the defendant Suffolk Anesthesiology Associates, P.C., and the five defendant physicians, including the respondent Anala, asserted the defense of lack of personal jurisdiction over Anala by reason of improper service. Anala was not personally served until October 29, 1983, more than two years after the decedent's death (cf. EPTL 5-4.1). Anala then executed a stipulation, at plaintiff's request, the effect of which was to allow his previously interposed answer to stand, but without the affirmative defense of lack of personal jurisdiction. Thereafter Anala sought leave to amend his answer to interpose the defense of the Statute of Limitations. His motion was granted by Special Term and this appeal ensued.

Plaintiff's contention that the stipulation waiving Anala's affirmative defense of lack of personal jurisdiction relates back to the date of his July 15, 1983 answer, thereby depriving Anala of the Statute of Limitations defense, confuses the different but related concepts of claim interposition and acquisition of personal jurisdiction. Simply stated, the running of the Statute of Limitations does not affect the court's ability to acquire jurisdiction over the defendant's person (see, Morrison v. Foster, 80 A.D.2d 887, 887-888, 437 N.Y.S.2d 371; Arce v. Sybron Corp., 82 A.D.2d 308, 310-311, 441 N.Y.S.2d 498). Valid personal service upon Anala on October 29, 1983, subjected him to the jurisdiction of the court and rendered meaningless his prior affirmative defense of lack of personal jurisdiction. By thereafter stipulating to waive that defense, Anala conceded only that jurisdiction over his person had now been acquired. Even had he continued to contest jurisdiction, Anala would have been free to amend his answer to assert any other defenses available to him (cf. Colbert v. International Security Bur., 79 A.D.2d 448, 461-465, 437 N.Y.S.2d 360, lv. denied 53 N.Y.2d 608, 442 N.Y.S.2d 1025, 425 N.E.2d 899; Calloway v. National Servs. Indus., 93 A.D.2d 734, 461 N.Y.S.2d 280, affd. 60 N.Y.2d 906, 470 N.Y.S.2d 583, 458 N.E.2d 1260), including the Statute of Limitations, absent prejudice or surprise resulting directly from the delay (CPLR 3025[b]; see, McCaskey, Davies & Assoc. v. New York City Health & Hosps. Corp., 59 N.Y.2d 755, 463 N.Y.S.2d 434, 450 N.E.2d 240; Balzac v. Jerome, 104 A.D.2d 1015, 480 N.Y.S.2d 940).

Plaintiff further contends that leave to amend defendant Anala's answer to assert the defense of the Statute of Limitations should not have been permitted because under the unity of interest doctrine (CPLR 203[b] ), the date of claim interposition against Anala relates back to the earlier date of service upon his codefendant, Suffolk Anesthesiology Associates, P.C., the medical group with whom Anala was associated at the time plaintiff's claim arose. Anala counters that his Statute of Limitations defense is not precluded by the unity of interest rule because service upon the medical group was not made until after he had disassociated himself from the...