[*1]
Reyes v Katari
2014 NY Slip Op 51640(U) [45 Misc 3d 1220(A)]
Decided on November 20, 2014
Supreme Court, Kings County
Steinhardt, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 20, 2014
Supreme Court, Kings County


Alba Reyes as the Administratrix of the Estate of Alejandro Diaz, Plaintiff,

against

Nagendra Sagar Katari, M.D., THEOPHINE O. ABAKPORO, M.D., PETER LO, M.D., KHAING MOE, M.D., ABDUL SHAHIDULLAH, M.D., PREM MISRA, M.D., PARTHASARATHI MARAPAREDDIGARI, M.D., PRAHDEEP SHARMA, M.D., and WYCKOFF HEIGHTS MEDICAL CENTER, Defendants.




13313/2011
Marsha L. Steinhardt, J.

Plaintiff moves for an Order pursuant to CPLR §203 permitting her to amend the complaint to add third-party defendants SIDDHARTH PANDYA, M.D., KYAW THU, M.D. and JUNG K. SUNG, M.D. This is an action sounding in medical malpractice based on the alleged failure to diagnose decedent's colorectal cancer. The complaint, filed on or about June 10, 2011, alleges that the original defendants treated Mr. Diaz from June 6, 2007 through on or about October 1, 2009. The proposed amended complaint also seeks to include treatment rendered to the patient commencing on May 23, 2007. In her moving papers, plaintiff states that the doctors sought to be added rendered treatment to the decedent at Wyckoff Hospital as either employees, independent contractors or agents of the hospital during the relevant time frame. She argues that the case arises out of the "collective failure" of the original defendants and the proposed defendants to diagnose the patient's cancer. She claims that doctors Padya, Thu and Sung are united in interest with the original defendants and that they are joint and severally liable, arguing they are all agents of the defendant hospital. Plaintiff states that these doctors were not part of the original complaint because their identities were unknown at the time the action was commenced.



It is uncontested that the statute of limitations with respect to claims sounding in medical malpractice, wrongful death and lack of informed consent has long expired as to the parties sought to be added herein. It expired as to Dr. Thu on or about November 23, 2009 as he treated the patient on May 23, 2007. The statue ran as to Dr. Sung on or about November 22, 2011; he last treated the patient on May 22, 2009. Since Dr. Panya treated the patient no later than October 1, 2009 the statute of limitations expired on or about April 1, 2012.



Dr. Thu submits an affidavit stating that he was employed by the Wyckoff Heights Medical Clinic from 1995 through June 2007. Dr. Thu treated plaintiff at the clinic on one occasion, May 23, 2007. He moved out of state in the summer of 2007 and commenced employment with another medical entity. Dr. Thu avers that he received no notice of the original action until he received the third-party summons and complaint in March 2013.



Dr. Sung also submits an affidavit stating that he was employed by a professional corporation at Wyckoff Heights Medical Clinic between June 20, 2007 and May 22, 2009. He states that he rendered care to the patient during that period. He is currently retired from the practice of medicine. Dr. Sung avers that he did not receive notice of this action until he received service of the third party summons and complaint on April 9, 2013.



Dr. Pandya opposes the motion claiming that he and the existing defendants are physicians specializing in different areas of medicine and provided distinct services to the patient at different times. These various services were provided by various physicians when the decedent was a patient at Wyckoff Heights ER, an inpatient at the Wyckoff Heights Hospital and an outpatient at the Wyckoff Heights Clinic.



"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 [*2]a codefendant for statute of limitations purposes where the two defendants are united in interest'(Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443 (2d Dept 2007), quoting Buran v Coupal, 87 NY2d 173, 177 [1995]; see Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d 835 (2d Dept. 2011). 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 known 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 NY2d at 178 (1995); Mondello v New York Blood Ctr. Greater NY Blood Program, 80 NY2d 219 [1992]; Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., supra. at 836; Lopez v Wyckoff Hgts. Med. Ctr., 78 AD3d 664 (2d Dept. 2010), Cardamone v Ricotta, 47 AD3d 659 (2d Dept. 2008). The linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period. (Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982 (2d Dept. 2009); see Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d at 836 (2d Dept. 2011)." Roseman v Baranowski, 120 AD3d 482, 484 (2d Dept. 2014). The burden is on the plaintiff to establish the applicability of the doctrine once a defendant has demonstrated that the Statute of Limitations has expired." Spaulding v Mt. Vernon Hosp., 283 AD2d 634, 635 (2d Dept. 2001]); Monir v Khandakar, 30 AD3d 487 (2d Dept. 2006).



"Parties are united in interest only where the interest in the subject matter of the action is such that their defenses will be the same and they will either stand or fall together with respect to the plaintiff's claim." Losner v Cashline, L.P., 303 AD2d 647, 648 (2d Dept. 2003); Monir v Khandakar, supra. Defendants are not united in interest if there is the mere possibility that the new party could have a different defense than the original party. Connell v. Hayden, 83 AD2d 30, 42 (2d Dept. 1981); LeBlanc v. Skinner, 103 AD3d 202 (2d Dept. 2012). Joint tortfeasors are generally not united in interest, since they frequently have different defenses, in that one tortfeasor usually will seek to show that he or she is not at fault, but that it was the other tortfeasor who is liable. LeBlanc, supra.; see Connell, supra. at 45, citing Maguire v. Yellow Taxicab Corp., 253 App.Div. 249, 251 (1st Dept. 1938) affd. 278 NY 576 (1938). If the only relationship between the original parties and the parties sought to be added is that of joint tort-feasors, the parties are not united in interest because each tort-feasor, acting independently, is liable to the plaintiff only because of his own fault; the fault of his codefendant is not imputed to him. In such circumstances, neither codefendant is responsible for the acts or omissions of the other. Connell, supra. at 44—45; Capital Dimensions, Inc. v. Samuel Oberman Co., Inc., 104 AD2d 432, 433 (2d Dept.1984). However, joint tortfeasors will be deemed to be united in interest where one is vicariously liable for the other (see Connell v. Hayden, supra. 45), such as where one tortfeasor is the agent of the other. LeBlanc v. Skinner, supra. "Interests will be united only where one party is vicariously liable for the acts of the other." Teer v. Queens—Long Is. Med. Group, 303 AD2d 488, 489 (2d Dept. 2009); Quiroz v. Beitia, 68 AD3d 957 (2d Dept. 2009).



Plaintiff has not shown that the relations back doctrine applies to Dr. Pandya, Dr. Thu or [*3]Dr. Sung. The claim against Dr. Thu is for treatment rendered on May 23, 2007 whereas the original complaint claims malpractice for dates commencing on June 6, 2007 through October 1, 2009. Clearly, as Dr. Thu's treatment predates those claimed in the original complaint, his treatment does not arise out of the same transaction or occurrence as that which is claimed against the original defendants. Thus, notice of the lawsuit cannot be charged to him. Likewise, there has been no showing that Dr. Thu bears a relationship with any of the original defendants. As his defenses would be different than those of the original defendants, the only relationship that Dr. Thu would have with the original defendants is that of a joint tortfeasor.



Likewise, there is no showing that the claims against Dr. Pandya and Dr. Sung arose out of the same conduct or occurrence as the claims against the original defendants. Dr. Panya and Dr. Sung were one of many physicians who provided care and treatment to the patient over the course of approximately two years. Each physician individually administered distinct treatments to the decedent on different dates over the course of several years. (See, Monir v Khandakar, supra.) Thus there is no basis for the claim that these doctors are united in interest with the original defendants such that they could be charged with notice of the original action. Their relationship to the existing defendants would also be that of a joint tortfeasor as their defense of this action would attempt to show that one of the other tortfeasors was liable for plaintiff's injuries and death. There is also no showing that these doctors should have known, but for a mistake, that this action would have been brought against them.



Plaintiff contends that there is a vicarious liability relationship between the proposed defendants and defendant Wyckoff Heights Medical Center and thus that the parties are united in interest. However, this claim is misplaced. "Interests will be united only where one party is vicariously liable for the acts of the other." Teer v. Queens Long Island Medical Group, P.C., 303 AD2d 488, 489 (2d Dept.2003). However, in this case Wyckoff Heights Medical Center allegedly would be vicariously liable for the proposed defendants, not the other way around. The defendant physicians cannot be held vicariously liable for the negligence of the hospital and liability cannot be transferred backwards to the physicians to establish the united in interest prong. See, Anderson v. Montefiore Medical Center, 41 AD3d 105 (1st Dept.2007).



Plaintiff argues that the holding in the Rosemon case supports this application. In that case, the Second Department found that the first two prongs of the test were satisfied in that the claim arose out of the same conduct or treatment (the alleged negligent and premature discharge of the patient from the hospital) and that the non party doctor was united in interest with the named defendant physician and medical group by virtue of their employment with the defendant medical group. However, the appellate division disagreed with the lower court's finding that the third prong of the test was not met. The Court noted that the complaint alleged that the decedent was negligently discharged and that the medical records indicated that the plaintiff's discharge was ordered by the nonparty doctor. It was therefore unreasonable for him to believe that he was not an intended defendant and that the action sought to be only against the named defendant.



This decision is fully in line with the Rosemon holding. Plaintiff in this case cannot prevail in this motion because the conditions under which a defendant may be added pursuant to relation back have not been met.



Accordingly, the motion is denied in its entirety.



This constitutes the opinion, decision and order of this court.



ENTER,



HON. MARSHA L. STEINHARDT



J.S.C.