Leone v Hospital for Special Surgery
Annotate this CaseDecided on June 27, 2006
Supreme Court, New York County
Dino Leone and Frances Leone, Plaintiffs,
against
Hospital for Special Surgery, NEW YORK PRESBYTERIAN HOSPITAL CORNELL, MEDICAL CENTER, PASCACK VALLEY HOSPITAL, BERNARD A. RAWLINS and HOWARD E. ROSENBERG, Defendants.
108798/03
Stanley L.Sklar, J.
The issue presented is whether defendant hospital's application to amend its answer to add an affirmative defense, grounded upon New Jersey law, of charitable immunity should be granted, or denied because of prejudice.
In this medical malpractice action commenced in May 2003 and placed on the trial calendar on March 2, 2006, defendant Pascack Valley Hospital ("Pascack"), which is located in New Jersey about 10 miles over the New York State border and which provided treatment to plaintiff, Dino Leone, who lived in New York about 500 feet from its border with New Jersey, moves for an order permitting it to amend its answer to assert the defense of charitable immunity pursuant to N.J. Stat. Ann. § 2 A. 53 A-8 That statute if applicable would limit Pascack's liability to plaintiff and his wife, who has asserted a derivative claim, to a total of $ 250,000 [See, Marsella v Monmouth Medical Center, 224 NJ Super 336 (1998)]. That statute would not cap the liability of any of Pascack's agents or employees, for whom it would be vicariously liable, assuming that they had been sued by plaintiffs, which they were not.
At the time plaintiffs commenced this action it is undisputed that under New York law plaintiffs still had about a year left before the statute of limitations expired as to Pascack's agents and employees, and that under New Jersey law they had about at least six months left before it expired [See NJ ST 2A: 14-2; Vispisiano v Ashland Chemical Co., 107 NJ 416 (1987); Troum v Newark Beth Israel Medical Center, 338 NJ Super 1 (2001); cert. den., 168 NJ 295 (2001)], since the claims against Pascack's agents and employees accrued between December 6, 2001, when plaintiff was first taken to Pascack's emergency room, and about December 14, 2001, when he left Pascack after having been admitted after a second emergency room visit several days after December 6.
It appears that plaintiff had been suffering from complications of surgery previously performed in September in New York at the codefendant Hospital for Special Surgery, by New York codefendant Dr. Bernard Rawlins. After that surgery plaintiff developed an infection and came under the care of codefendant infectious disease specialist, Dr. Howard [*2]Rosenberg. Soon thereafter the patient's wife called Dr. Rawlins because her husband was in severe pain. Plaintiff was brought to Pascack's emergency room twice because Dr. Rawlins told the patient's wife to have him brought to the nearest hospital; so she made that request of emergency medical services when they arrived. See F. Leone aff.
Pascack claims that New Jersey law, including the charitable immunity statute, applies to this case because Pascack's alleged malpractice occurred in New Jersey and plaintiff voluntarily availed himself of the services of a New Jersey hospital. Therefore, Pascack about 2½ years after it served its answer which asserted only two affirmative defenses [FN1] each of which specifically relied on New York State law, i.e. Public Health Law § 2805-d (4) and CPLR Article 16, moved to amend its answer to assert New Jersey's charitable immunity defense, claiming that New Jersey law applies to plaintiffs' claims against it.
Plaintiffs oppose the motion on the ground that it would be unduly prejudiced at this late date were Pascack's motion to be granted, not only because the parties engaged in extensive discovery, including depositions, and at least 7 court conferences, before the original version of this motion was served, but because the statute of limitations has now expired with respect to any of the hospital's agents and employees for whom Pascack is vicariously liable. Plaintiffs also disagree with Pascack's position that New Jersey law applies to the claims asserted against it.
All of the codefendants oppose Pascack's motion as well fearing that the cap imposed under the charitable immunity statute will result in their having to pay more than their fair share to plaintiffs or will at least require them to have to go directly after those for whom Pascack would be vicariously liable.
Pascack's motion is denied. Assuming arguendo that it applies, the charitable immunity defense is an affirmative one as conceded by Pascack's counsel [See Siegel reply aff. in opp. to plaintiffs' opposition, p 3; See also Marsella, supra; Roberts v Timber Birch-Broadmoore Athletic Association, 371 NJ Super 189, 197 (2004)], and as such Pascack was required to plead it in its answer (NJ R Super Tax Surr Cts Civ R. 4:5-4).
Here not only did Pascack fail to assert such affirmative defense in its June 18, 2003 answer, but the affirmative defenses it did assert, which relied on specific provisions of New York law, could easily have been misconstrued by plaintiffs' and codefendants' counsel as evincing an intent to have New York rather than New Jersey law apply to the claims asserted against Pascack.
Under both New York and New Jersey law leave to amend pleadings may be granted (See CPLR 3025; NJ Super Tax Surr Cts Civ R 4:9-1), but not if the opposing side will be unduly prejudiced. See Whalen v Kawasaki Motors, 92 NY2d 288, 293 (1998); Notte v Merchants Mut. Ins., 185 NJ 490, 495 (2006)
In the instant case Pascack does not deny that well after Pascack served its answer that failed to contain the affirmative defense of charitable immunity the statute of limitations expired as to those individuals who treated plaintiff at Pascack, which is claimed to be liable under principles of respondeat superior. Nor does, Pascack allege that under New Jersey law any claims asserted against any of Pascack's agents and employees, who might be joined in this [*3]action at this extremely late date, would relate back to the commencement of this action against Pascack, so as to vitiate any statute of limitations defense. Indeed it appears to be Pascack's counsel's position that those who treated plaintiff were not united in interest with Pascack. See Siegel reply aff. to plaintiff's opp. ¶ 11 Further, Pascack's counsel neglects to offer in her moving affirmation any excuse for the failure to include the charitable immunity defense in Pascack's answer or for seeking to amend its answer about two and a half years later, after at least 7 conferences and extensive discovery.
While Pascack's counsel, who does not claim to have first hand knowledge, claims that the individual physicians who treated plaintiff at Pascack were private attendings, who were not under Pascack's control, such assertion is irrelevant here since, aside from the fact that Pascack is not seeking summary judgment on the ground that it is not vicariously liable for anyone who treated plaintiff at Pascack, including in its emergency room, even if it were so moving, presumably the issue of apparent or de facto agency would be presented since such doctrine is recognized under New York and New Jersey law. See e.g. Arthur v St. Peters Hosp., 169 NJ Super 575 (1979), citing Mduba v Benedictine Hospital, 52 AD2d 450 (2nd Dept, 1976); Muniz v Belleville Bd. of Ed., 2003 WL 21962246 (N.J. Super. A.D.)
In light of the demonstrated prejudice to plaintiff caused by the undisputed expiration of the statute of limitations as to the individuals who treated plaintiff at Pascack, its motion for leave to serve an amended answer asserting the affirmative defense of charitable immunity is denied.
In light of the foregoing disposition I need not at this point in the case, and do not decide whether New Jersey law applies to the claims asserted against Pascack.
Settle order.
Dated: June 27, 2006
60 Centre Street
New York, NY
J.S.C.
Footnotes
Footnote 1: Pascack did not in its answer and does not claim now that New York lacks jurisdiction over it.
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