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Cracolici v. Shah

Supreme Court, New York County

July 29, 2013


Unpublished Opinion


When they commenced this medical malpractice action by filing on September 3, 2010, the plaintiffs Vincent and Stefania Cracolici's were representing themselves.[1] Also, the action was commenced solely against Dr. Sovrin Shah, the physician who had performed surgery on March 17, 2008, to replace Mr. Cracolici's artificial urinary sphincter. Subsequently, the plaintiffs were able to retain counsel, and additional defendants were sued; namely, Dr. Gabor Nemesdy, an anesthesiologist, his group York Anesthesiologists, PLLC, ("York"), Dr. Simon Barkagan, a urologist, and Dr. Zafar Khan, also a urologist.

Then, Dr. Barkagan moved to dismiss the action on Statute of Limitations grounds. The plaintiffs opposed. Following that, the other defendant doctors, Shah, Nemesdy and Khan, moved for summary judgment, but essentially arguing the untimeliness of the action. The plaintiffs opposed that motion except as to Dr. Nemesdy and York. Regarding those two defendants, their counsel and plaintiffs counsel stipulated to discontinue the action with prejudice on January 22, 2013, and the Stipulation was "So Ordered" by the Court.

Therefore, in this decision, I will deal only with the motions by Doctors Shah, Barkagan and Khan, all of whom are arguing that the plaintiffs waited too long to commence the action. I believe Doctors Barkagan and Khan are correct in this argument. However, Dr. Shah is not. He was the first defendant sued, and he will remain as the one and only defendant. I have reached that conclusion after reviewing all the dates of contact that Vincent Cracolici had with each of the moving defendants, as well as the relationships, if any, that these physicians had with each other, along with the applicable law. I will now discuss those dates, relationships and the law.

Dr. Barkagan, a urologist, had been treating the plaintiff since 1995 when he performed surgery on him. This doctor saw Mr. Cracolici through the years up until April 24, 2008. This appointment followed Dr. Shah's surgery on March 17, 2008, a surgery to replace the artificial urinary sphincter that Dr. Barkagan had inserted in 1995. The sphincter had become damaged when Mr. Cracolici was in an automobile accident in 2007. Dr. Barkagan's visit with the plaintiff on April 24th after the surgery is the predicate for the case against him. Specifically, Cracolici contends that he made complaints to Dr. Barkagan during his examination about the artificial sphincter being too easily and inadvertently activated, which the doctor failed to properly address.

The two and one-half year Statute of Limitations dictated by CPLR §214-a would therefore begin running from the last visit on April 24, 2008 and end on October 24, 2010. Since the action against Dr. Barkagan was not commenced until 2011, it is untimely (although it appears that on December 28, 2010, the plaintiffs attempted to serve this doctor and others with an amended complaint, which was not filed with the County Clerk until months later on February 15, 2011).[2]

Because of the problem created by the above facts, counsel for the plaintiffs asked to supplement their papers to argue that Dr. Barkagan was "united in interest" with Dr. Shah so as to have the 2011 complaint, which names Dr. Barkagan, "relate back" to the September 3, 2010 complaint that named only Dr. Shah.

But the two defendants are not united in interest. As both counsel acknowledge, pursuant to case law which was ultimately codified into CPLR §203, there must be three factors present to make a finding that defendants are "united in interest". They are 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 thus can be charged with notice of the initiation of the action without being prejudiced in maintaining his defense on the merits; 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 him as well.

See, Brock v Bua, 83 A.D.2d 61 (2nd Dep't 1981) and Mondello v New York Blood Ctr, 80 N.Y.2d 219 (1992). In Baran v. Coupal, 87 N.Y.2d 173 (1995), the third prong of this doctrine was relaxed to eliminate any requirement that the mistake had to be "excusable".

Moving counsel argues that Mr. Cracolici does not meet any of these prongs. I believe she is correct. As to the first, the new defendant must be a part of the same occurrence or involved in the same event as the original defendant. But Dr. Barkagan had no participation in the March 17, 2008 surgery performed by Dr. Shah. The plaintiff does take issue with the manner in which that surgery was performed, which is reflected in the claims made against Dr. Shah. However, as I interpret the complaint against Dr. Barkagan, it alleges that on April 24, when Mr. Cracolici came to his office for an examination, this doctor failed to adequately address his complaints and his conditions. That, I find, is a claim separate from the surgery and certainly would not share any departure from accepted standards of medical care that is alleged against the surgeon Dr. Shah.

The second prong is also not met. As I understand it, there is no formal or even informal professional relationship between the two doctors. No one claims otherwise. In other words, it seems clear that they are independent physicians operating separate urological practices. That Dr. Barkagan may have on occasion recommended Dr. Shah does not change that fact. Under such circumstances, neither doctor would be responsible for the actions of the other.

As to the final prong, under these circumstances there is no reason to believe that Dr. Barkagan knew about the action commenced against Dr. Shah or anticipated that he also ...

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