Smith v. Cutson

• Citation: 591 N.Y.S.2d 674,188 A.D.2d 1034
• Parties: Geraldine M. SMITH, as Administratrix of the Estate of Ross R. Colombo, Respondent-Appellant, v. Frank CUTSON, M.D., Appellant-Respondent.
• Decision Date: 30 December 1992
• Court: New York Supreme Court Appellate Division

Page 674

591 N.Y.S.2d 674

188 A.D.2d 1034

Geraldine M. SMITH, as Administratrix of the Estate of Ross R. Colombo, Respondent-Appellant, v. Frank CUTSON, M.D., Appellant-Respondent.

Supreme Court, Appellate Division Fourth Department.

Dec. 30, 1992.

Robert J. Hirsch, P.C. by Christopher Noone, Rochester, for appellant-respondent.

Charles A. Schiano, Jr., Rochester, for respondent-appellant.

Before DENMAN, P.J., and GREEN, LAWTON, FALLON and DOERR, JJ.

MEMORANDUM:

Supreme Court erred in concluding that defendant should be estopped from asserting the Statute of Limitations as a defense to plaintiff's medical malpractice cause of action. Although a defendant may be estopped from pleading the Statute of Limitations "where plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Simcuski v. Saeli, 44 N.Y.2d 442, 448-449, 406 N.Y.S.2d 259, 377 N.E.2d 713), the doctrine of equitable estoppel is to be "invoked sparingly and only under exceptional circumstances" (Matter of Gross v. New York City Health and Hosps. Corp., 122 A.D.2d 793, 794, 505 N.Y.S.2d 678). The record before us contains no evidence of fraud, misrepresentation, deception, or intentional concealment on defendant's part to entitle plaintiff to invoke the doctrine of equitable estoppel. Moreover, plaintiff admittedly learned the identity of defendant at the EBT of a codefendant in December 1987, yet waited until after the expiration of the Statute of Limitations to serve defendant. Under those circumstances, there was no basis for applying the extraordinary doctrine of equitable estoppel and the court should have granted defendant's motion to dismiss plaintiff's medical malpractice cause of action.

Supreme Court properly held that service upon defendant did not relate back to service upon the Family Medicine Center pursuant to CPLR 203(b)(1). Where plaintiff is attempting to add to the action a new defendant who was not named in the original summons, plaintiff must show that both claims arose out of the same conduct, transaction, or occurrence; that the new party is united in interest with the original defendant; and that the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well (see, Matter of Mondello v. New York Blood Center, 80 N.Y.2d 219, 590 N.Y.S.2d 19, 604 N.E.2d 81; Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407). In discussing the third prong of the test, courts have held...