Gotlin v Parisien

[*1] Gotlin v Parisien 2008 NY Slip Op 50265(U) [18 Misc 3d 1132(A)] Decided on February 15, 2008 Supreme Court, Richmond County Minardo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 15, 2008
Supreme Court, Richmond County

Gary Gotlin, Public Administrator of Richmond County, as Administrator of the Estate of RAQUEL MARTINEZ, Deceased, and EMILIO ALMAZO VILLEGAS, Individually, Plaintiffs,

against

Christine Parisien, M.D., Defendant.



102318/07

Philip G. Minardo, J.

Upon the foregoing papers, defendant's motion to dismiss the within action as barred by the applicable statute of limitations is granted.

This is an action sounding in medical malpractice, wrongful death and loss of consortium.To the extent relevant, on August 1, 2003, plaintiff commenced a medical malpractice action under Index No.12644/03 (hereafter "Action No. 1"), based upon a surgical procedure and subsequent emergent care which is claimed to have caused the wrongful death of plaintiff's deceased on October 31, 2003 (see Defendant's Exhibit"A"). At the time the action was commenced, defendant was not named as a party. Neither was she still employed by the hospital named in the original complaint, nor was she a New York State resident.

In February 2005, Dr. George Jerzy Kuczabeski, a named defendant in Action No. 1, testified at his EBT that a resident, Dr. Christine Parisien (defendant herein) performed "most of the [deceased's] procedure" (see Plaintiffs' Exhibit"C"), while he assisted and observed. In June 2005, plaintiff moved for an open commission to conduct the non-party deposition of Dr. Parisien in Texas (see Defendant's Exhibit "F"). Approximately one month later, the hospital, St. Vincent's Medical Center, a defendant in Action No. 1, filed for bankruptcy, thereby affecting a stay of all proceedings, including the motion to depose Dr. Parisien. Although the bankruptcy stay was lifted on October 11, 2006, the court order directing the out-of-state deposition of Dr. Parisien was not filed until April 12, 2007. According to plaintiff, Dr. Parisien "made every attempt to evade service of the Texas subpoena ", and after multiple unsuccessful attempts at service, plaintiff "elected to pursue a direct suit against Dr. Parisien".

The instant action (Action No. 2) was filed on May 19, 2007 in Supreme Court Richmond County under Index No. 102318/07 (see Defendant's Exhibit "L"). The summons and complaint were served upon Dr. Parisien in Texas on June 21, 2007 (see Plaintiff's Exhibit "H").

In support of the motion to dismiss, defendant asserts that in accordance with EPTL §5-4.1, plaintiffs had two years from the date of death (i.e., until October 31,2003) to commence a wrongful death claim against Dr. Parisien, and until April 20 2004 (i.e., 2 1/2 years from the last date of treatment) to commence a medical malpractice action against her. The Court notes in this regard that plaintiffs have produced no evidence that Dr. Parisien took part in any subsequent therapeutic care of the decedent following the surgical procedure on October 19, 2001. Inasmuch as plaintiffs are alleged to have commenced this action over three years after the expiration of either limitations period, it is claimed that dismissal of the complaint is warranted.

In opposition to the motion, plaintiffs rely on the "relation-back" doctrine in an attempt to revive the time-barred claims. Under the relation-back doctrine, a claim asserted against a new defendant may relate back to the date that the claim was filed against a co-defendant if the plaintiff can establish that (1) both claims arise out of the same conduct, transaction, or occurrence, (2) the [*2]prospective defendant is united in interest with the original defendant, and (3) the new defendant knew or should have known that "but for" plaintiff's mistake as to the identity of the proper parties, the action would have been brought against it as well (see Buran v. Coupal, 87 NY2d 173, 178; Nani v. Gould, 39 AD3d 508, 509; Austin v. Interfaith Med. Ctr, 264 AD2d 702, 703). As previously suggested, the burden of proof is on the plaintiff to establish the applicability of the doctrine once a defendant has established that the statute of limitations has expired (see Austin v. Interfaith Med. Ctr, 264 AD2d at 703).

Here, in response to defendant's demonstration of a prima facie case for dismissal, plaintiffs have met their burden of proving that both actions are based upon the same allegations of negligence insofar as they relate to the decedent's surgery, and that any alleged negligence attributable to the defendant-doctor occurred while she was a resident and employee of St. Vincent's Hospital. Accordingly, she and the hospital are "united in interest" for purposes of the relation-back doctrine, since it is immaterial "whether the actual wrongdoer or the person or entity sought to be charged vicariously was served first" ( see Astudillo v. Flushing Hosp. Med. Ctr., 18 AD3d 588, 589; Schiavone v. Victory Mem. Hosp., 300 AD2d 294).

However, plaintiffs at bar have failed to establish the third prong of the applicable test, which focuses on the element of notice. According to Shapiro v. Good Samaritan Regional Hosp Med Ctr (42 AD3d 443, 44), "[n]otice to the new defendant within the applicable limitations period is the linchpin of the relation-back doctrine, and thus the third prong of the test focuses, inter alia, on whether the defendant could have reasonably concluded that the failure to sue within the limitations period meant that there was no intent to sue that person at all and that the matter has been laid to rest as far as he [or she] is concerned" (id. at 444, quoting Buran v. Coupal, 87 NY2d 173, 180-181 and Brock v. Bua, 83 AD2d 61, 70 [internal quotation marks omitted]).

Here, plaintiff's attorney asserts in a conclusory fashion that an earlier effort had been made to contact Dr. Parisien over the telephone, and that she refused to discuss the case. However, no date is given for this attempt, and no supporting evidence is included among the opposition papers. It thus appears that the only evidence of any attempt to contact Dr. Parisien regarding this action first occurred in 2003, and even viewing that evidence in the light most favorable to the plaintiffs, that such contact did not occur until after May 10, 2007, the date the subpoena to depose Dr. Parisien was issued by the State of Texas.

Nevertheless, plaintiffs aver that "Parisien had to know that, but for a mistake, she would have been included in the initial lawsuit and would have been served. [Thus, s]he had no basis for believing that the case had been laid to rest'". In this regard, the excusability of plaintiffs' mistake in failing to name and serve Dr. Parisien in Action No. 1 is immaterial (see Buran v. Coupal, 87 NY2d at 179). However, since Dr. Parisien' s name is clearly typed on the operative report, even if she had been aware of the pending lawsuit, there is no evidence of any reason for her to have believed that "but for" a mistake in identity, she would have been named as a defendant in that action (see Nani v. Gould, 39 AD3d 508). Under these circumstances, it would not have been unreasonable for Dr. Parisien to have assumed that by allowing the statutes of limitations to expire during the intervening 3 1/2 years, plaintiffs intended to proceed only against those defendants named in the initial action (id. at 510).

Plaintiffs having failed to demonstrate that the relation-back doctrine may be properly invoked in this case, their causes of action against the named defendant are barred by the applicable statutes of limitation.

Accordingly, it is hereby

ORDERED, that defendant's motion is granted and the complaint dismissed; and it is further

ORDERED, that the Clerk shall enter judgment in accordance herewith.

ENTER,

S/ Philip G. Minardo

J.S.C. [*3]

DATED: February 15, 2008

bh