The plaintiff moves for leave to amend the verified complaint in this action. The defendants, Khan and Murtuza, cross-move to dismiss the eighth and tenth causes of action in an amended complaint already filed by plaintiff. The plaintiff commenced this action on April 21, 2004 against the defendants, St. Francis Hospital and Arlen Fleisher, M.D. The plaintiff's complaint alleges that the decedent, Diana Nolan, was operated on by Dr. Fleisher for an epiphrenic diverticulum on January 13, 2003 at St. Francis Hospital. It is alleged that Ms. Nolan was released and thereafter, readmitted on January 19, 2003 with alleged complications from the initial procedure. Ms. Nolan died on February 10, 2003 allegedly from complications arising from the initial procedure, specifically an esophageal leak. On February 23, 2005, the plaintiff's counsel filed an amended summons and verified complaint adding Zubair Khan, M.D. and Maqbool Murtuza, M.D. as defendants without defendants' stipulation or leave of the court. CPLR Rule 3025 provides:

"(a) Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.

(b) Amendments and supplemental pleadings by leave. A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. "

The plaintiff was not authorized to file and serve an amended complaint without leave, since more than twenty (20) days had passed since service of the defendants' answers. The plaintiff's counsel concedes that the defendants did not stipulate to filing and serving the amended complaint.

It is well established that "the joinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and non-compliance renders the pleadings jurisdictionally defective." (Perez v. Paramount Communications, Inc., 92 NY2d 749, 753 [1999].) In this instance, the failure to obtain court approval to add defendants Khan and Murtuza as party defendants constituted a jurisdictional defect and rendered service of the amended complaint on those defendants a legal nullity. (Public Administrator v. McBride, 15 AD3d 558, 559 [2d Dept. 2005].)

For all the foregoing reasons, it is ordered that defendants' motion is granted and the amended summons and verified complaint filed on February 23, 2005 in this action are dismissed.

It has been held that a decision to grant or deny leave to amend is within the court's discretion and such exercise shall not be lightly disturbed. (Duffy v. Bass & D'Allesandro, Inc., 245 AD2d 333 [2d Dept. 1997].) Although the court has broad discretion in determining such an application, it must consider any potential prejudice to plaintiff, any inordinate delay and whether the proposed amendment lacks merit. (Noanjo Clothing, Inc. v. L&M Kids Fashion, Inc., 207 AD2d 436 [2d Dept. 1994].) The court is required to examine the merit of each allegation raised in a proposed amended pleading. (NAB Construction Corp. v. Metropolitan Transportation Association, 167 AD2d 301 [1st Dept. 1990].) The proposed amended complaint submitted herein adds two defendants and several additional causes of action. Plaintiff's claims for wrongful death which must be commenced within two years of the decedent's death. More than two years has passed since the decedent died on February 10, 2003 and any wrongful death action against defendants Khan and Murtuza is time barred. The plaintiff's counsel contends that CPLR §203(f) permits the wrongful death claim to be asserted against Drs. Khan and Murtuza in spite of the apparent time bar. CPLR §203(f) provides:

"Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

In order to apply the "relation back" doctrine as asserted by the plaintiff, the court must apply a three-prong test:

"(1) both claims arose out of 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 an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well." (Buran v. Coupal, 87 NY2d 173, 178 [1995].)

The plaintiff maintains that the claims against defendants Khan and Murtuza arose out of the same conduct as the claims against St. Francis Hospital and Dr. Fleisher articulated in the original complaint. The plaintiff has not submitted any objective evidence to support that assertion. There is no affidavit by a doctor or other medical expert which attests, on a prima facie basis, that the deviations in treatment alleged against Dr. Fleisher and St. Francis Hospital are the same conduct alleged against defendants Khan and Murtuza. Likewise, there is no objective expert evidence that the alleged deviation by Khan and Murtuza involves the same transaction or occurrence. The plaintiff's original complaint alleges that on January 13, 2003 and January 19, 2003, defendants Fleisher and St. Francis Hospital failed to properly treat and care for the decedent, Diana Nolan. In the proposed amended complaint, the plaintiff avers, inter alia, that "the death of plaintiff decedent was caused solely by the negligence of the defendant (Khan)." The plaintiff makes the identical allegation against defendant Murtuza in the proposed amended complaint. The plaintiff has provided no expert evidence which would establish, on a prima facie basis, that the alleged misconduct by the defendants, Khan and Murtuza, arose out of the same transaction or occurrence as alleged in the original complaint against the defendants, Fleisher and St. Francis Hospital.

The plaintiff asserts that defendants Khan and Murtuza are "united in interest" with the original defendants Fleisher and St. Francis Hospital and that, by reason of that relationship, can be charged with notice of the institution of the action. The plaintiff concedes that defendants Khan and Murtuza were not employees of St. Francis Hospital at the time of Ms. Nolan's admission on January 19, 2003. The plaintiff has failed to demonstrate that the defendants, Khan and Murtuza, had any unity of interest with the defendants, Fleisher and St. Francis Hospital such that notice to the latter would necessarily provide notice to the former.

The plaintiff has failed to demonstrate that defendants Murtuza and Khan should have known that the action would have been brought against them as well as defendants St. Francis Hospital and Fleisher, except for an excusable mistake by plaintiff as to the identity of the proper parties. The only excuse offered by the plaintiff's counsel is that he and his client did not know defendants Murtuza and Khan were not employees of St. Francis Hospital. This lack of knowledge is not excusable, particularly since a minimal inquiry would have revealed the information. Additionally, the plaintiff offers no explanation as to how defendants Murtuza and Khan may be presumed to have known that the plaintiff's action against St. Francis Hospital and Fleisher could include them. I find that the "relation back" doctrine is not applicable herein and that plaintiff's wrongful death claims against Murtuza and Khan are time barred.

The plaintiff has failed to submit an affidavit of merit with regard to the remaining claims of malpractice against defendants Khan and Murtuza in the amended complaint. Under the circumstances, I am not able to find that those claims have merit.

For all of the foregoing reasons, it is ordered that the plaintiff's application for leave to serve the proposed amended complaint is denied.

The foregoing constitutes the decision and order of the Court.

Dated:Poughkeepsie, New York

June 30, 2005

ENTER

HON. JAMES D. PAGONES, A.J.S.C.

TO:

062705 decision&order