Opinion
522 CA 21-00717
07-08-2022
NORMAN K., Individually and as Administrator of the Estate of Danielle L.K., Deceased, and as Parent and Natural Guardian of Devyn K., Briane M. and Tyler A.M., Plaintiff-Respondent, v. Alan POSNER, M.D., Mary Brown, N.P., et al., Defendants, and Lynne Ross, M.D., Defendant-Appellant. (Appeal No. 1.)
EAGAN & HEIMER PLLC, BUFFALO (LAUREN HEIMER OF COUNSEL), FOR DEFENDANT-APPELLANT. VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
EAGAN & HEIMER PLLC, BUFFALO (LAUREN HEIMER OF COUNSEL), FOR DEFENDANT-APPELLANT.
VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action against, among others, defendants Alan Posner, M.D. and Mary Brown, N.P. and, after the applicable statute of limitations period had expired, plaintiff filed an amended complaint adding Lynne Ross, M.D. as a defendant. Ross moved pursuant to CPLR 3211 (a) (5) to dismiss the amended complaint and any cross claims against her as time-barred and, in appeal No. 1, Ross appeals from an order that denied the motion. In appeal No. 2, Ross appeals from an order that granted plaintiff's motion to settle the order in appeal No. 1.
Initially, inasmuch as Ross has not raised any contentions with respect to the order in appeal No. 2, that appeal must be dismissed as abandoned (see Golf Glen Plaza Niles, Il. L.P. v. Amcoid USA, LLC , 160 A.D.3d 1375, 1376, 76 N.Y.S.3d 307 [4th Dept. 2018] ; Abasciano v. Dandrea , 83 A.D.3d 1542, 1545, 924 N.Y.S.2d 696 [4th Dept. 2011] ).
Contrary to Ross's contention in appeal No. 1, the motion to dismiss was properly denied based on the relation back doctrine (see May v. Buffalo MRI Partners, L.P. [Appeal No. 2] , 151 A.D.3d 1657, 1658, 56 N.Y.S.3d 715 [4th Dept. 2017] ). " ‘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 his [or her] 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’ " ( id. ; see Buran v. Coupal , 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ; Nani v. Gould , 39 A.D.3d 508, 509, 833 N.Y.S.2d 198 [2d Dept. 2007] ).
We reject Ross's contention that plaintiff failed to establish the second and third prongs of the test. The second prong, unity of interest, is satisfied " ‘when the interest of the parties in the subject-matter is such that they [will] stand or fall together and that judgment against one will similarly affect judgment against the other’ " ( Mongardi v. BJ's Wholesale Club, Inc. , 45 A.D.3d 1149, 1150, 846 N.Y.S.2d 441 [3d Dept. 2007] ). "There is unity of interest where the defenses available ... will be identical, [which occurs] ... where one is vicariously liable for the acts of the other" ( May , 151 A.D.3d at 1658-1659, 56 N.Y.S.3d 715 [internal quotation marks omitted]). Contrary to Ross's contention, the record establishes that she was united in interest with Brown inasmuch as Ross was Brown's employer during the relevant time period (see id. ; Perillo v. Dilamarter , 151 A.D.3d 1710, 1711, 56 N.Y.S.3d 742 [4th Dept. 2017] ; see generally Athenas v. Simon Prop. Group, LP , 185 A.D.3d 884, 885, 128 N.Y.S.3d 284 [2d Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6877745 [2020] ).
With respect to the third prong, "the mistake by plaintiff need not be an excusable mistake" ( May , 151 A.D.3d at 1659, 56 N.Y.S.3d 715 ; see Buran , 87 N.Y.2d at 180-181, 638 N.Y.S.2d 405, 661 N.E.2d 978 ). Here, we conclude that the third prong was satisfied because plaintiff established that the "failure to include [Ross] as a defendant in the original ... complaint was a mistake and not ... the result of a strategy to obtain a tactical advantage" ( Nasca v. DelMonte , 111 A.D.3d 1427, 1429, 975 N.Y.S.2d 317 [4th Dept. 2013] [internal quotation marks omitted]). Even assuming, arguendo, that plaintiff was negligent in not ascertaining Ross's potential liability sooner, we conclude that "there was still a mistake by plaintiff[ ] in failing to identify [Ross] as a defendant" ( Kirk v. University OB-GYN Assoc., Inc. , 104 A.D.3d 1192, 1194, 960 N.Y.S.2d 793 [4th Dept. 2013] ).