In an action, inter alia, to recover damages for medical malpractice, the defendant Wyckoff Imaging Services, P.C., appeals, as limited by the brief, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated January 6, 2009, as denied its motion, in effect, for summary judgment dismissing the amended complaint insofar as asserted against it as time-barred, denied its separate motion pursuant to CPLR 3126 to dismiss the cross claim asserted against it by the defendant Wyckoff Heights Medical Center, denied its separate motion to sever the action insofar as asserted against it, and granted the cross motion of the defendant Wyckoff Heights Medical Center for summary judgment on its cross claim for contractual indemnification against the defendant Wyckoff Imaging Services, P.C., and the third-party defendant Clyde Gregoire, as executor of the estate of Rafael Loscos, also appeals, as limited by the brief, from so much of the same order as denied his motion to sever the third-party action.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
REINALDO E. RIVERA, J. P., ANITA R. FLORIO, HOWARD MILLER, L. PRISCILLA HALL, JJ.
(Index Nos. 8577/06, 75860/08)
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the cross motion of the defendant Wyckoff Heights Medical Center for summary judgment on its cross claim for contractual indemnification against the defendant Wyckoff Imaging Services, P.C., and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
In September 2003 the plaintiff underwent a mammography at the defendant Wyckoff Heights Medical Center (hereinafter Medical Center), which was interpreted by the defendant Antonio Beitia (hereinafter Dr. Beitia). In October 2003 the plaintiff had radiograph films taken at the Medical Center of her pelvic area after complaining of pain. Dr. Rafael Loscos interpreted the films and found them to be normal. On December 10, 2004, the plaintiff underwent an MRI at the Bellevue Hospital Center, which revealed that she had a large tumor in her pelvic area. Additionally, in December 2005 a biopsy was performed on the plaintiff at the Bellevue Hospital Center, which revealed that she had breast cancer.
On or about March 17, 2006, the plaintiff commenced the instant action against, among others, the Medical Center and Dr. Beitia, alleging, inter alia, that they negligently failed to diagnose and treat the plaintiff's pelvic tumor and breast cancer.
Thereafter, a deposition was conducted of Dr. Beitia on June 15, 2007. Dr. Beitia testified that he and Dr. Loscos were employed by the defendant Wyckoff Imaging Services, P.C. (hereinafter Wyckoff Imaging), while working at the Medical Center.
On or about July 20, 2007, the plaintiff moved for leave to amend her complaint to add Wyckoff Imaging as a defendant. In an order dated January 17, 2008, the Supreme Court granted the plaintiff's motion, and the plaintiff served an amended complaint on Wyckoff Imaging on or about March 18, 2008. The Medical Center then asserted a cross claim for contractual indemnification against Wyckoff Imaging, and commenced a third-party action against Clyde Gregoire, as executor of the estate of Rafael Loscos (hereinafter the Estate). Wyckoff Imaging brought three separate motions, which were (1), in effect, for summary judgment dismissing the amended complaint insofar as asserted against it as time-barred, (2) pursuant to CPLR 3126 to dismiss the cross claim asserted against it by the Medical Center, and (3) to sever the action insofar as asserted against it. The Medical Center cross-moved for summary judgment on its cross claim for contractual indemnification against Wyckoff Imaging. Additionally, the Estate moved to sever the third-party action from the main action. The Supreme Court denied Wyckoff's motions and the Estate's motion, and granted the Medical Center's cross motion.
The Supreme Court properly denied Wyckoff Imaging's motion, in effect, for summary judgment dismissing the amended complaint insofar as asserted against it as time-barred. Wyckoff Imaging established that the amended complaint was filed after the expiration of the 2 1/2-year statute of limitations applicable to a cause of action to recover damages for medical malpractice (see CPLR 214-a; Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982; Teer v Queens-Long Is. Med. Group, 303 AD2d 488, 489). The burden then shifted to the plaintiff to present evidence sufficient to establish that the relation-back doctrine applied (see Cardamone v Ricotta, 47 AD3d 659, 660; Nani v Gould, 39 AD3d 508, 509; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703).
In order for a claim asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that "(1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and (3) the new party 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 that party as well" (Schiavone v Victory Mem. Hosp., 292 AD2d 365, 366 [internal quotation marks and citation omitted]; see Buran v Coupal, 87 NY2d 173, 178; Alvarado v Beth Israel Med. Ctr., 60 AD3d 981, 982).
Here, the relevant claims clearly arose out of the same conduct, transaction, or occurrence.
Contrary to Wyckoff Imaging's contention, the doctrine of the law of the case did not prevent the plaintiff from arguing, in opposition to its motion, that Wyckoff Imaging was united in interest with the Medical Center for purposes of the applicability of the relation-back doctrine, since the Supreme Court never determined this issue ...