Opinion
Index No. 805271/2021 MOTION SEQ. No. 001
05-02-2022
RACHELLE GONZALEZ, as Administratrix of the Estate of ABRAHAM GONZALEZ, and RACHELLE GONZALEZ individually, Plaintiff, v. MEDTRONIC, PLC, ATHOS PATSALIDES, M.D., and NEW YORK PRESBYTERIAN HOSPITAL, Defendants.
Unpublished Opinion
MOTION DATE 02/22/2022
PRESENT: HON. JOHN J. KELLEY Justice
DECISION + ORDER ON MOTION
John J. Kelley Judge
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20 were read on this motion to/for AMEND CAPTION/PLEADINGS .
In this action to recover damages for medical malpractice and wrongful death, and to recover in strict products liability, the plaintiff moves pursuant to CPLR 305(c) and 3025(b) for leave to file an amended summons and amended complaint so as to substitute Medtronic USA, Inc., for Medtronic, PLC, as a party defendant. No party opposes the motion. The motion is granted, the summons and complaint are amended accordingly, and the plaintiff is directed to serve a copy of the amended summons and the amended complaint upon Medtronic USA, Inc., on or before August 29, 2022. The amended summons and the amended complaint shall be deemed served upon the defendants Athos Patsalides, M.D., and New York Presbyterian Hospital as of the date that this order is entered.
Medtronic, PLC, is a corporation incorporated in Ireland that manufactures medical devices. It is affiliated with Medtronic USA, Inc., a corporation that is incorporated in the State of Minnesota, where both companies have their principal offices. Medtronic USA, Inc., is registered with the New York State Secretary of State as a foreign corporation authorized to do business in the State of New York, with its principal offices within the State located in Erie County. In its filing with the Secretary of State, Medtronic USA, Inc., has designated Corporation Service Company, 80 State Street, Albany, New York, as its registered agent for service of process.
On March 8, 2021, the plaintiff commenced this action against Medtronic, PLC, among others, alleging that it developed, designed, manufactured, and sold a device known as Medtronic EV3 Hyperform Occlusion Balloon System, bearing Product Catalog Number 104-4370, Lot Number A794829, that malfunctioned due to improper manufacture and design, thus causing injury to the plaintiff's decedent. She caused a copy of the summons and complaint to be served upon Medtronic, PLC, by delivering it to Corporation Service Company in Albany. Medtronic, PLC, has yet to answer the complaint.
The plaintiff now seeks leave to amend the summons and the complaint to substitute Medtronic USA, Inc., as a party defendant in place and instead of Medtronic, PLC.
"CPLR 305 (c) authorizes the court, in its discretion, to 'allow any summons or proof of service of a summons to be amended, if a substantial right of a party against whom the summons issued is not prejudiced.' This provision, and its predecessors, has been consistently interpreted as allowing a misnomer in the description of a party defendant to be cured by amendment, even after the Statute of Limitations has run. Generally, such an amendment should be granted where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought (see, Stuyvesant v Weil, 167 NY 421; Simpson v Kenston Warehousing Corp., 154 A.D.2d 526; Creative Cabinet Corp. v Future Visions Computer Store, 140 A.D.2d 483; Gajdos v Haughton Elevator, 131 A.D.2d 428; Yanni v Chopp, 130 A.D.2d 489, 490-491; Connor v Fish, 91 A.D.2d 744; Luce v Pierce Muffler Shops, 51 Misc.2d 256, affd 28 A.D.2d 826; McLaughlin, 1988 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C305:4, 1990 Supp Pamph, at 193; Siegel, NY Practice § 65, at 66-67; 3 Carmody-Wait 2d, NY Prac §§ 19:11, 19:19)"(Ober v Rye Town Hilton, 159 A.D.2d 16, 19-20 [2d 1990]; see Jordan-Covert v Petroleum Kings, LLC, 199 A.D.3d 666, 668 [2d Dept 2021]; Martin v Witkowski, 158 A.D.3d 131, 139 [4th Dept 2017]; Houghtalen v Norstar Bank, 191 A.D.2d 371, 371 [1st Dept 1993]).
The plaintiff has demonstrated that she already has properly served the correct defendant, that Medtronic USA, Inc., as the correct defendant, would not be prejudiced by granting the amendment sought, and that "'the misnomer could not possibly have misled the defendant concerning who it was that the plaintiff was in fact seeking to sue'" (Jordan-Covert v Petroleum Kings, LLC, 199 A.D.3d at 668, quoting Creative Cabinet Corp. of Am. v Future Visions Computer Store, 140 A.D.2d 483, 484-485 [2d Dept 1988]). Moreover, the amendment may be made nunc pro tunc (see Jordan-Covert v Petroleum Kings, LLC, 199 A.D.3d at 668; Jaramillo v Asconcio, 151 A.D.3d 947, 949-950 [2d Dept 2017]). Hence, the plaintiff is entitled to amend the summons, the caption, and the complaint to substitute Medtronic USA, Inc., as a party defendant in place and instead of Medtronic, PLC, and the summons, the caption, and complaint are deemed amended, nunc pro tunc, as of March 8, 2021.
In light of the foregoing, it is
ORDERED that the plaintiff's motion is granted, without opposition; and it is further, ORDERED that the summons, the caption of the action, and the complaint are deemed amended, nunc pro tunc as of March 8, 2021, so as to substitute Medtronic USA, Inc., as a party defendant in place and instead of Medtronic, PLC; and it is further, ORDERED that the caption of this action is amended to read as follows:
Image Omittedand it is further,
ORDERED that the amended complaint uploaded to the New York State Court Electronic Filing system under Docket Entry 19 is deemed served upon the defendants Athos Patsalides, M.D., and New York Presbyterian Hospital as of the date of entry of this order; and it is further, ORDERED that, on or before August 29, 2022, the plaintiff shall, pursuant to CPLR 311(a)(1), serve upon Medtronic USA, Inc., a copy of a properly amended summons and the amended complaint in the form uploaded to the New York State Court Electronic Filing system under Docket Entry 19; and it is further, ORDERED that, on the court's own motion, within 15 days of the entry of this order, the plaintiff shall serve a copy of this order upon the Trial Support Office (60 Centre Street, Room 148, New York, NY 10007), and shall separately file and upload the notice required by CPLR 8019(c) and a completed Form EF-22, and the Trial Support Office shall thereupon amend the
This constitutes the Decision and Order of the court.