The following papers numbered 1 to 3 read on this motion.

UPON THE FOREGOING CITED PAPERS, THIS MOTION IS DENIED AS FOLLOWS:

Motion by defendants, Lilian Cavin, M.D., and Eagle Radiology, PLLC (Eagle Radiology) for dismissal of plaintiffs' wrongful death claim based on the statute of limitations is denied. (CPLR 3211(a)(5).) The decedent, Charles DelToro, passed away on October 4, 2017. In May 2019, plaintiffs commenced a medical malpractice and wrongful death action against [*2]Lilian Cavin, M.D., Mark Curato, D.O., Madonna Mansour, M.D., and St. Barnabas Hospital. Dr. Cavin made a limited appearance in this action to challenge service of process, and the Court ultimately determined that she was not properly served with the summons and complaint. On January 17, 2020, plaintiffs commenced a second medical malpractice and wrongful death action against Dr. Cavin and her limited liability company, Eagle Radiology. On May 24, 2021, both actions were consolidated, and at the parties' request, the actions were consolidated under the second action's index number. The two-year statute of limitations for wrongful death, (EPTL § 5-4.1), expired on October 4, 2019, and as the second wrongful death action was commenced some three months later, Dr. Cavin and Eagle Radiology seek dismissal of same (CPLR 3211(a)(5)).

By way of background, there is no dispute that in October 2017, x-rays of the decedent were taken at St. Barnabas, and Dr. Cavin was one of the doctors who interpreted the films. At the time, Dr. Cavin resided in Texas, and worked remotely as the sole member of Eagle Radiology. According to the complaint and bills of particulars, Dr. Cavin and St. Barnabas failed to, inter alia, properly interpret the x-rays resulting in an "[i]nfection as a result of undiagnosed bilateral rib fractures." In opposing the motion, plaintiffs argue that Dr. Cavin and Eagle Radiology reviewed the x-rays in question on behalf of St. Barnabas, and as such, St. Barnabas is vicariously liable for said defendants. (Hill v St. Clare's, 67 NY2d 72 [1986].)^[FN1] Given the aforementioned, plaintiffs further argue that service upon Dr. Cavin and Eagle Radiology in the second action (i.e., January 2020) should relate back to the service upon St. Barnabas in the first action (i.e., May 2019), (CPLR § 203(c); Buran v Coupal, 87 NY2d 173 [1995]; Cornell v Hayden, 83 AD2d 30 [2nd Dept 1981]), thereby avoiding the statute of limitations.

Section 203(c) of the CPLR, commonly referred to as the relation-back doctrine, applies to claims "interposed against the defendant or co-defendant united in interest with such defendant when the action is commenced." In other words, a claim asserted against a newly added defendant in an amended complaint relates back to claims previously asserted against an original (and now) co-defendant for statute of limitation purposes where the defendants are united in interest. In most instances, the relation back doctrine is sought by plaintiffs seeking to amend a complaint to add a party or a cause of action (Buran, 87 NY2d 173); however, it has been applied to consolidated actions. (Xavier v RY, 45 AD3d 677 [2nd Dept 2007]; Guilderland v Texaco, 159 AD2d 829 [3rd Dept 1990].) The current three part test in applying the relation back doctrine was first enunciated by the Second Department in Brock v Bua, (83 AD2d 61 [2nd Dept 1981]), then adopted by the Court of Appeals in Mondello v NY Blood, (80 NY2d 219 [1992]), and subsequently modified in Buran, (87 NY2d 173). The three part Buran test that must be satisfied in order for claims against one defendant to relate back to claims asserted against another include: (1) both claims arise 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 he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.

There is little dispute that the wrongful death claims in both actions arose out of the same conduct, transaction or occurrence; therefore, the first part of the Buran test is easily satisfied. In addition, as previously noted, at the time in question, Dr. Cavin made a limited appearance in the first action to challenge service of process. As Dr. Cavin was well aware of being named a defendant in the earlier action, and she is the sole member of Eagle Radiology, the third part of the Buran test is satisfied. In addressing the second part of the Buran test, it must be noted that parties are considered to be united when their interest in the subject matter is such that they will stand or fall together with respect to plaintiffs' claim. (Xavier, 45 AD3d 677.) That is why within the context of a negligence action, unity of interest exists where one defendant will be held vicariously liable for the conduct of the other defendant (Mondello, 80 NY2d 219; Xavier, 45 AD3d 677).

Vicarious liability, similar to products liability, is an exception to the general proposition that limits one's liability to one's own wrongdoing. (Mondello, 80 NY2d 219.) In the medical malpractice realm, the general rule is that a medical facility will be held vicariously liable for the malpractice of its employee(s). (Bing v Thunig, 2 NY2d 656 [1957].) A medical facility may also be held vicariously liable for non-employees on the theory of agency/control in fact, or in the alternative theory of apparent/ostensible agency. (Hill, 67 NY2d 72.) For example, apparent/ostensible agency has been applied to hold a medical facility responsible for the malpractice of a physician providing services there, despite the physician's status as an independent contractor, where medical care was sought by a patient from the facility rather than from a particular physician (id.).

Here, to the extent that plaintiffs can establish that Dr. Cavin and Eagle Radiology failed to, inter alia, properly interpret the x-rays in question, resulting in an "[i]nfection as a result of undiagnosed bilateral rib fractures," St. Barnabas will be held vicariously liable for their conduct. Hence, they are united in interest, and there is no real prejudice in allowing Dr. Cavin and Eagle Radiology to defend this action on the merits. This satisfies the second part of the Buran test. Based on the aforementioned, the instant motion by Dr. Cavin and Eagle Radiology for dismissal, (CPLR 3211(a)(5)), is denied. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.