Opinion
2012-03-13
Migdalia SOTO, Plaintiff–Respondent, v. BRONX–LEBANON HOSPITAL CENTER, Defendant,Heidi Dupret, M.D., Defendant–Appellant.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York (Samantha E. Quinn of counsel), for appellant. Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel), for respondent.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York (Samantha E. Quinn of counsel), for appellant. Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel), for respondent.
Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 25, 2011, which, in this action alleging medical malpractice, denied the motion of defendant Heidi Dupret, M.D. to dismiss the amended complaint as time-barred, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Plaintiff's action against Dupret, the attending obstetrician and gynecologist who performed the allegedly negligent abdominal hysterectomy, should have been dismissed as time-barred. The amended complaint naming her as an additional defendant was not commenced within the 2 1/2-year statute of limitations ( see CPLR 214–a), and plaintiff failed to meet her burden of demonstrating the applicability of the relation-back doctrine ( see Bulow v. Women in Need, Inc., 89 A.D.3d 525, 527, 933 N.Y.S.2d 222 [2011] ). The record fails to establish that Dupret knew or should have known that, but for plaintiff's mistake in identifying the proper parties, she would have been named as a party in the lawsuit ( see *850 Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ). No mistake can be shown by plaintiff's intentional decision not to initially assert a claim against Dupret, a party known to be potentially liable ( see id. at 181, 638 N.Y.S.2d 405, 661 N.E.2d 978; Goldberg v. Boatmax://, Inc., 41 A.D.3d 255, 256, 840 N.Y.S.2d 570 [2007] ).