Geraci v Levada

[*1] Geraci v Levada 2006 NY Slip Op 51220(U) [12 Misc 3d 1174(A)] Decided on May 1, 2006 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 1, 2006
Supreme Court, Suffolk County

Sandra Geraci and John Geraci, Plaintiffs,

against

Maria E. Levada, M.D., KMLT Gynecological Associates, P.C., Damiano Buffa, M.D., Suffolk Obstetrics & Gynecology, LLP, Quest Diagnostics, Geoffrey Hajian and Daisy Grueso, M.D., Defendants.



02-8143

Thomas F. Whelan, J.

ORDERED that this motion by plaintiffs for an Order (1) striking the third affirmative defense of defendant, Daisey Grueso, D.O., served herein as Daisy Grueso, M.D.; (2) directing the defendants to provide outstanding discovery within thirty days of the date of this Order; and (3) amending the caption to note the plaintiffs' discontinuance of the action as against the defendants, Quest Diagnostics and Geoffrey Hajian, and the correct the professional title of defendant, Daisy Grueso, M.D. to Daisy Grueso, D.O., is granted to the extent that the caption is amended to reflect the professional title of defendant Daisy Grueso as being D.O. and defendants, Quest Diagnostics and Geoffrey Hajian, are hereby deleted therefrom, denied as to striking the third affirmative defense of the defendant Daisy Grueso D.O., and denied as being academic and moot regarding discovery demands in view of the parties' stipulation dated February 15, 2006; and it is further

ORDERED that the caption of the action is amended to reflect the deletion of defendants, Quest Diagnostics and Geoffrey Hajian as said action has been discontinued against them; and it is further

ORDERED that, within ten (10) days of the date herein, movant shall serve a copy of this Order upon the calendar clerk of this IAS Part 33 who shall note in the court's records the change in the caption of this civil action and all future documentation and correspondence filed with the court shall bear the amended caption; and it is further

ORDERED that movant shall also serve a copy of this Order with Notice of Entry upon counsel for the defendants within twenty (20) days of the date herein pursuant to CPLR 2103(b)(1), (2) or (3) and thereafter file the affidavits of service with the Clerk of the Court; and it is further

ORDERED that this matter having been remanded on April 19, 2006 is referred to the Calendar Control Part for a trial assignment.

Plaintiffs move for an Order striking the third affirmative defense of the defendant Daisy Grueso. D.O. sued herein as Daisy Grueso. M.D.(hereinafter "Grueso"), to amend the caption to reflect the professional title of Daisy Grueso to Daisy Grueso, D.O. and the discontinuance of the action against Quest Diagnostics and Geoffrey Hajian, and to compel the defendants to respond to plaintiffs' discovery demands. The motion is opposed by all defendants.

The issues regarding discovery have been resolved according to a stipulation signed by the parties on February 15, 2006. Therefore, that portion of plaintiffs' motion seeking discovery is denied as academic and moot.

The action has been discontinued as to defendants, Quest Diagnostics and Geoffrey Hajian, according to Stipulation dated November 17, 2005, filed December 2, 2005. Therefore, the request to amend the caption to delete those defendants is granted. [*2]

Regarding plaintiffs' application pursuant to CPLR 203(f), under the relation back doctrine, to strike the third affirmative defense of Grueso, the Court notes that Grueso was added as a direct defendant pursuant to an Order/Stipulation (Underwood, J.) dated October 28, 2004. The amended summons and complaint was served upon Grueso on several occasions between November 20, 2004 and February 5, 2005, twice pursuant to CPLR 308(2) and once pursuant to CPLR 308(1). Grueso served an answer on or about January 10, 2005 with several affirmative defenses including the statute of limitations. Grueso opposes this portion of plaintiff's motion based upon the fact that the statute of limitations has expired in this action.

As the expiration of the applicable statute of limitations is not disputed before Grueso was served with process, the burden is on the plaintiffs to show the applicability of the "relation back doctrine" (see Teer v Queens Long Island Med. Group, P.C., 303 AD2d 408, 755 NYS2d 430 [2d Dept 2003]; Ramos v Cilluffo, 276 AD2d 475, 714 NYS2d 88 [2d Dept 2000]). CPLR 203(f) allows for a claim asserted in an amended pleading to be deemed interposed at the time of the original pleadings so that the new claims "relate back" to the original complaint filed as a co-defendant for statute of limitations purposes (see Buran v Coupal, 87 NY2d 173, 638 NYS2d 405 [1995]). "The doctrine enables a court to correct a pleading - by adding either a new claim or a new party - after the statutory period has expired" (Id at 177). In applying the relation back doctrine, a Court requires that (1) both claims arise out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant; or (3) the new party knows or should have known that, but for a mistake by the plaintiff in originally failing to identify the proper parties, the action would have been brought against the additional party (see Losner v Caseline, L.P. , 303 AD2d 647, 757 NYS2d 91 [2d Dept 2003]; Spaulding v Mt. Vernon Hosp., 283 AD2d 634, 725 NYS2d 358 [2d Dept 2001]; Ramos v Cilluffo, 276 AD2d 475, supra ; Austin v Interfaith Med. Ctr., 264 AD2d 702, 694 NYS2d 730 [2d Dept 1999]; Buran v Coupal, 87 NY2d 173, supra ; Mondello v New York Blood Ctr-Greater New York Blood Program, 80 NY2d 219, 590 NYS2d 19 [1992 ]; Brock v Bua, 83 AD2d 61, 443 NYS2d 407 [2d Dept 1991]).

Unity of interest is usually found where one of the parties could be held vicariously liable for the conduct of the other (Id.). In Buran v Coupal, the Court of Appeals modified the third prong of the test as set forth in Brock v Bua by eliminating the requirement that the plaintiff's mistake be excusable. "The relation back doctrine is aimed at liberalizing strict requirements while respecting the important policies inherent in the statute of limitations. The doctrine enables a plaintiff to correct a pleading error by adding either a new party or a new claim after the statute of limitations has expired." (Hemmings v St. Marks Housing Assoc., L.P. 169 Misc 2d 155, 156, 157, 642 NYS2d 1018 [Sup. Ct. Kings County 1996], citation omitted; app. dism. 242 AD2d 284, 661 NYS2d 964 [2d Dept 1997]).

Where a defendant has asserted a statute of limitations defense, it then becomes incumbent upon the plaintiff to explain why he/she did not assert a claim against the proposed new defendant in a timely manner (see Bereck v Hamza, 299 AD2d 516, 750 NYS2d 502 [2d Dept 2002]; Karmel v White Plains Common Council, 284 AD2d 464, 726 NYS2d 692 [2d [*3]Dept 2001 ]). The Court will not find that a plaintiff made a mistake when he/she intentionally decided not to assert a claim against a party known to be potentially liable or when plaintiff fails to timely request records which would have identified the proper parties (see Tucker v Lorieo, 291 AD2d 261, 738 NYS2d 33 [1st Dept 2002]; Buran v Coupal, 87 NY2d 181, supra ).

This action was timely commenced by the plaintiffs' prior counsel in March of 2002. On September 22, 2004, a consent to change plaintiffs' attorney was filed with the Court. On February 17, 2004, an examination before trial, conducted by plaintiffs' former counsel, of the defendant, Maria E. Levada, M.D. (hereinafter "Levada"), was held. Levada was a principal of the co-defendant, K. M..L.T., the professional medical corporation where the plaintiff went for medical care and treatment. It was first learned at this examination before trial that Grueso was employed by K.M.L.T. as a salaried employee and that Grueso was a physician with whom the plaintiff treated with during her visits to K.M.L.T. An examination before trial of Grueso, held on October 31, 2005, indicated Grueso had seen and treated the plaintiff during her employment at K.M.L.T.. Grueso has not refuted this fact.

Although as stated, Grueso opposes the motion, she does not dispute that the first prong of the relation back test is applicable to her and certainly the second prong of the "united in interest" standard. However, counsel for Grueso state's that she would be highly prejudiced under this second prong because her medical insurance coverage is limited to $1,000,000.00 and she has no excess coverage. Further, that although there have been settlement discussions, counsel theorizes that the plaintiff will seek in excess of Grueso's policy limits should a jury verdict be awarded in excess of her coverage. This would clearly prejudice Grueso according to her counsel. As counsel for the plaintiff correctly notes, the amount or lack of adequate insurance coverage available to Grueso would still be available to her whether she was named in the action originally or, has herein, subject to the relation back doctrine. Grueso's exposure would be the same and therefore, the Court does not find that she would be prejudiced by this fact. Her's was a conscious decision regarding the amount of liability insurance to maintain in this specialized area of medicine.

Regarding the third prong of the of the doctrine, counsel asserts that Grueso did not know, nor should she have known, that the action would have been brought against her as it was brought against Levada and K.M.L.T. Grueso submits her affirmation dated February 6, 2006 and states that at no time was she aware of the action until she was contacted by an attorney for K.M.L.T. sometime in 2004.

While Grueso's affirmation would be acceptable under ordinary circumstances under CPLR 2106, it is without probative value when the affirming person is a party to the action (see 1-14 Weinstein, Korn & Miller, CPLR Manual § 14.08; 134 Siegal's Prac. Rev. 3, April 2003).

In the instant matter, however, plaintiff has not satisfied the third prong of the "relation back" doctrine and has not produced any evidence that Gruseo knew or should have known, but for a mistake of the plaintiff as to her identity, the action would have been brought against her [*4]earlier (see Yovane v White Plains Hosp. Ctr., 228 AD2d 436, 643 NYS2d 625 [2d Dept 1996]). "The linchpin is notice and notice within the limitations period" (Schiavone v Fortune, 477 U.S. 21, 31, 106 S. Ct. 2379, 91 L. Ed. 2d 18 [ 1986]; see also Buran v Coupal, 87 NY2d 173, supra ; Virelli v Goodson-Todman Enters., Ltd., 142 AD2d 479, 536 NYS2d 571 [3d Dept 1989], app after remand 159 AD2d 479, 536 NYS2d 571 [3d Dept 1989]). Plaintiff had the unique and perfect opportunity during Grueso's examination before trial held in October of 2005 to establish this fact, but failed to do so. Thus, the Court declines to grant plaintiff that affirmative relief and find notice where notice was not proven when the opportunity was present. Under the facts and circumstances presented herein, that portion of the plaintiffs' motion seeking an Order to strike the affirmative defense of Grueso, is denied.

Accordingly, the motion is granted as herein indicated. This constitutes the Order and decision of the Court.

DATED: May 1, 2006___________________________

THOMAS F. WHELAN, J.S.C.