Abbott v Ostad

[*1] Abbott v Ostad 2005 NY Slip Op 51347(U) Decided on August 23, 2005 Supreme Court, Bronx County Roman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 23, 2005
Supreme Court, Bronx County

Beverly Abbott, Plaintiff,

against

David Ostad, Defendant.



21818/04

Nelson S. Roman, J.

Plaintiff moves seeking leave to amend his summons and complaint to add two new defendants, DAVID OSTAD, M.D., P.C. (PC) and JAMES REARDON (Reardon). Plaintiff asserts that even though the Statute of Limitations has run, the relation back doctrine applies and as such PC and Reardon can be sued. Defendant opposes the instant motion asserting that the relation back doctrine is inapplicable.

For the reasons that follow hereinafter, plaintiff's motion is denied.

According to plaintiff's bill of particulars, the instant action is one for personal injuries resulting from alleged medical malpractice. It is alleged that the medical malpractice in question occurred from February 2002 through September 2002.

The summons and verified complaint is dated August 26, 2004, filed on August 30, 2004, and alleges that defendant was negligent with respect to medical services performed between May 2002 and July 15, 2002. Specifically, it is alleged that defendant was negligent when he performed surgery upon plaintiff on June 12, 2002.

Pages within medical records provided by plaintiff in support of the instant motion bear PC letterhead and list Reardon as an assistant to defendant with plaintiff's surgical procedure on June 12, 2002 and June 21, 2002. [*2]

In opposition to the motion, defendant provides an affidavit from Mojgan Ostad (Ostad), wherein she states as follows. She was the office manager of Park Avenue Plastic Surgery P.C. (Park) and fully familiar with all staff therein. Reardon was never employed by Park and never has been. Reardon received no payment from Park and instead was an independent contractor. Defendant was employed by Park and was principal owner of the same. Defendant has no affiliation with PC and never practiced medicine on behalf of the same .

Amendment of Pleadings

Generally, leave to amend a pleading shall be freely granted absent prejudice or surprise resulting directly from the delay. McMcaskey, Davies and Associates, Inc., 59 NY2d 755 (1983); Fahey v. County of Ontario, 44 NY2d 934 (1978). Delay in seeking leave to amend a pleading is not in it of itself a barrier to judicial leave to amend, instead, "[i]t must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine." Edenwald Contracting Co. v. City of New York, 60 NY2d 957, 958 (1983). A failure to adequately explain the delay in seeking to amend the pleadings, if coupled with prejudice, may serve as a basis for the denial of movant's motion to amend. Morgan v. Prospect park Associates Holdings, L.P., 251 AD2d 306 (2nd Dept 1998). A motion seeking leave to amend a pleading must be denied if the amendment will result in actual prejudice or surprise. Bonanni v. Staright Arrow Publishers, 133 AD2d 585 (1st Dept. 1987). An amendment which requires supplemental discovery thereby resulting in prejudicial delay should be denied. Alpert v. Shea Gould Climenko & Casey, 160 AD2d 67 (1st Dept. 1990). In Bonanni, the Court denied plaintiff's petition to amend the complaint, when plaintiff sought to add a new theory of liability, four years after the action was initially commenced, which had not been mentioned in the original complaint. Bonanni v. Staright Arrow Publishers, 133 AD2d 585 (1st Dept. 1987). The Court concluded that the theory originally pled and the theory for which leave to amend was sought required different factual proofs. Id. In Alpert, the Court concluded that the original complaint did not sufficiently give notice of the facts regarding the amendment and cause of action. Alpert v. Shea Gould Climenko & Casey, 160 AD2d 67 (1st Dept. 1990). As such, the Court concluded that, the absence of notice did not enable the defendant to prepare a defense. Id. The Court deemed that plaintiff's three year delay in seeking to amend its pleadings was inexcusable. Id.

Even if there is no prejudice resulting from the proposed amendment, before leave is granted, it must be demonstrated that the proposed amendment has merit. Thomas Crimmins Contracting Co., Inc. v. City of New York, 74 NY2d 166 (1989)(Defendant's petition to amend its answer to assert, an affirmative defense, was denied when the Court found that the defense even if asserted would not be meritorious); Herrick v. Second Cuthouse, Ltd., t/a Forbidden Forest, 64 NY2d 692 (1984)(Court concluded that defendant was rightfully allowed to amend its answer when the amendment would not prejudice plaintiff and where the amendment was found to have merit); Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003); Rachmani Corporation v. 19th Street Associates, 214 AD2d 358 (1st Dept. 1995); Leszczynski v. Kelly & McGlynn, 281 AD2d 519 (2nd Dept. 2001); McKiernan v. Mckiernan, 207 AD2d 825 (2nd Dept. 1994). When seeking to amend the complaint the moving party must make some evidentiary showing that a proposed amendment has merit. Curran v. Auto Lab Serv. Ctr., 280 AD2d 636 (2nd Dept. 2001). The motion to amend [*3]will be granted " unless the insufficiency or lack of merit is clear and free from doubt." Noanjo Clothing v. L & M Kids Fashion, 207 AD2d 436, 437 (2nd Dept. 1994). Thus, it has been held that the Court should examine the proposed amendment and determine whether said amendment is legally sufficient or otherwise has merit. Weider v. Skala, 168 AD2d 355 (1st Dept. 1990) (Court held that plaintiff's proposed amendment to include a tortious interference claim was legally insufficient and was not meritorious. Consequently, the motion seeking leave to amend the complaint to assert that cause of action was denied). In discussing the relevant inquiry as it pertains to motions seeking leave to amend pleadings the Court stated

***this Court has held that leave to amend a complaint is not granted upon mere request without a proper showing. Rather, in determining whether to grant leave to amend, a court must examine the underlying merit of the causes of action asserted therein, since to do otherwise, would be wasteful of judicial resources.

Id. at 76-77. On this issue, the Court of Appeals has stated that

Where a proposed defense plainly lacks merit, however, amendment of a pleading would serve no purpose but needlessly to complicate discovery and trial, and the motion to amend is therefore, properly denied.

Thomas Crimmins Contracting Co., Inc. v. City of New York, 74 NY2d 166, 170 (1989).

Thus, in determining whether to grant the proposed amendment, the Court can look at whether or not the proposed amendment is sufficient on its face to establish a viable cause of action or whether the evidence submitted supports a conclusion that the claim has merit. Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003); Rachmani Corporation v. 19th Street Associates, 214 AD2d 358 (1st Dept. 1995); Ortega v. Bisogno & Meyerson, 2 AD3d 607 (2nd Dept. 2003). In Mansell, an employment discrimination case, plaintiff sought to amend her complaint to assert a claim that she was discriminated against by virtue of her disability. Mansell v. City of New York, 304 AD2d 381 (1st Dept. 2003). The Court concluded that based on the documentary evidence, the claim of discrimination had no merit and therefore, plaintiff's application to amend was properly denied. Id. The Court also concluded that the proposed pleading was bereft of any allegations to support a claim of discrimination. Id. In Leszczynski, the Court denied plaintiff's leave to amend the pleadings after finding that the action was barred by the statute of limitations and plaintiff's pleadings were devoid of merit. Leszczynski v. Kelly & McGlynn, 281 AD2d 519 (2nd Dept. 2001). The Court in acknowledging that at times an action can be asserted even if the statute of limitations has run by virtue of the "relation-back doctrine," found that plaintiff had the burden of establishing the applicability of said doctrine, which in that case did not apply. Id.

Relation Back Doctrine

CPLR §203(c) states

Claim in complaint where action is commenced by filing. In an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united [*4]in interest with such defendant when the action is commenced.

Essentially, the section cited above, commonly referred to as the relation back doctrine, "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are 'united in interest.'" Buran v. Coupal, 87 NY2d 173,177 (1995). The doctrine allows plaintiff to correct a pleading error by adding either new claims or parties after the statutory limitations period has expired. Id.

To benefit from the doctrine, it must be demonstrated that

(1) both claims arose 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 an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.

Id. at 178, quoting, Brock v. Bua, 83 AD2d 61, 69 (2nd Dept. 1981). The word "excusable" has now been omitted from the abovementioned test. Id. The First Department has also held that it is relevant whether the failure to initially sue the new defendant was an attempt to secure some tactical advantage in the litigation. Yaniv v. Taub, 256 AD2d 273 (1st Dept. 1998). If so, the relation back doctrine is inapplicable. Id. Plaintiff bears the burden of establishing, using proof, that the relation back doctrine applies. Teer v. Queens-Long Island Medical Group, P.C., 303 AD2d 488 (2nd Dept. 2003); Spaulding v. Mt. Vernon Hospital, 283 AD2d 634 (2nd Dept. 2001). Unity of interest, under the second prong of the test, will be found where there is some relationship between the defendants "giving rise to the vicarious liability of one for the conduct of the other." Vanderburg v. Brodman, 231 AD2d 146 (1st Dept. 1997); Teer v. Queens-Long Island Medical Group, P.C., 303 AD2d 488 (2nd Dept. 2003). The notion of control underpins the doctrine of vicarious liability Vanderburg v. Brodman, 231 AD2d 146 (1st Dept. 1997). So that the person in a position to exercise authority or control over the wrongdoer must do so or bear the consequences. Id. For purposes of unity interest, the relevant inquiry is whether "the interest of the parties in the subject-matter is such that they [the parties] stand or fall together and that judgment against one will similarly affect the other." Id. at 148.

Discussion

CPLR 214-a states that the Statute of Limitations for medical malpractice is two and one half years from the date of the failure or omission alleged. Thus, to the extent that the malpractice alleged occurred at the very latest in September 2002, the Statute of Limitations on this action expired in December 2004. The instant motion is made several months thereafter. Since plaintiff did not sue PC or Reardon prior to that time, absent the applicability of the relation back doctrine, [*5]the alleged cause of action against them is barred.

To the extent that plaintiff has failed establish that PC, defendant, and Reardon are united in interest, the relation back doctrine is inapplicable and the motion herein must be denied. While it is true that Reardon and PC appear within the medical records provided by plaintiff, no evidence is submitted by plaintiff establishing that PC and Reardon are in fact united in interest with defendant. The attorney affirmation provided by plaintiff is replete with allegations that PC and Reardon are united in interest with defendant and vicariously liable for one another's conduct. However, plaintiff's submission is bereft of any proof or evidence to support the same. As demonstrated by case law, unity in interest is established if the defendants are vicariously liable for each other's conduct. In this action no evidence has been presented indicating that defendants are vicariously liable to one another. Plaintiff alleges that defendant was doing business as PC and that defendant directed, supervised, controlled, or employed Reardon. However, nothing in the records supports that. Nothing indicating that defendants exercised control over one another has been submitted and nothing indicates that a judgment against one will affect the other.

On the contrary, the sworn affidavit submitted by defendant, the only evidence submitted discussing the relationships between the defendant, PC and Reardon, establishes that Reardon was an independent contractor never employed or paid by defendant. This indicates that defendant exercised no control over Reardon and thus cannot be vicariously liable for his conduct. The same affidavit establishes that defendant had no affiliation with PC at all thereby negating the existence any relationship whatsoever, let alone one which would lead to vicarious liability. Having failed to establish unity interest among defendant, PC, and Reardon, the Court need not address the other prongs necessary for the applicability if the relation back doctrine. However, it is worth noting that for the reasons just mentioned, primarily the absence of any relationship between the parties, or evidence that the defendants exercised control over one another, it cannot be said that PC or Reardon can be charged with notice of the action herein. Therefore prong two is not satisfied. Consequently, to be brought into this action at this stage in the litigation may very well prejudice PC and Reardon in preparing a defense. Lastly, to the extent that PC has no relationship with defendant and Reardon was an independent contractor not employed or paid by defendant, it cannot be said that PC or Reardon should have known that but for a mistake in identifying the defendants they would have been sued as well. To the extent that PC is a separate entity altogether, it had no reason to believe it would have been sued simply because defendant was sued. Reardon as an independent contractor, similarly had no expectation he would be sued especially when, for years, his name was contained in plaintiff's own medical records, which contrary to plaintiff's assertion were available to him at anytime by authorization. Plaintiff's motion is hereby denied. It is hereby

ORDERED that defendant serve a copy of this Order with Notice of Entry on all plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order. [*6]

Dated :August 23, 2005

Bronx, New York

_____________________________Nelson S. Roman, J.S.C.