TARANTINO LAW FIRM, LLP, BUFFALO (JENNA S. STRAZZULLA OF
COUNSEL), FOR DEFENDANT-APPELLANT.
M. CERCONE, PLLC, BUFFALO (ROLAND M. CERCONE OF COUNSEL), FOR
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER,
from an order of the Supreme Court, Erie County (Frederick J.
Marshall, J.), entered March 8, 2016. The order, inter alia,
denied the motion of defendant Hari Gopal, M.D., for summary
judgment dismissing the amended complaint against him.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Plaintiff commenced this action against defendant Buffalo MRI
Partners, L.P. (Buffalo MRI) and, after the applicable
statute of limitations expired, plaintiff filed an amended
complaint adding, inter alia, Hari Gopal, M.D. as a
defendant. Dr. Gopal moved pursuant to CPLR 3211 (a) to
dismiss the amended complaint against him as time-barred and,
by the order in appeal No. 1, Supreme Court (Curran, J.)
converted the motion to one for summary judgment. Dr. Gopal
then moved for summary judgment seeking dismissal of the
amended complaint against him as time-barred and, by the
order in appeal No. 2, Supreme Court (Marshall, J.), inter
alia, denied the motion. Dr. Gopal has not raised any
contentions with respect to the order in appeal No. 1, and we
therefore dismiss the appeal therefrom (see Abasciano v
Dandrea, 83 A.D.3d 1542, 1545; see generally
Ciesinski v Town of Aurora, 202 A.D.2d 984, 984).
to Dr. Gopal's contention in appeal No. 2, the motion for
summary judgment was properly denied based on the relation
back doctrine (see Goldstein v Brookwood Bldg.
Corp., 74 A.D.3d 1801, 1802). "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 will not be
prejudiced in maintaining his 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 as
well" (Nani v Gould, 39 A.D.3d 508, 509;
see Buran v Coupal, 87 N.Y.2d 173, 178).
reject Dr. Gopal'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 the other' " (Mongardi
v BJ's Wholesale Club, Inc., 45 A.D.3d 1149, 1150).
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' "
(De Sanna v Rockefeller Ctr., Inc., 9 A.D.3d 596,
598; see Johanson v County of Erie, 134 A.D.3d 1530,
1531; Verizon N.Y., Inc. v LaBarge Bros. Co., Inc.,
81 A.D.3d 1294, 1296). Dr. Gopal contends that, even if he
was an employee of Buffalo MRI, there is no unity of interest
because he could not be vicariously liable for the acts of
Buffalo MRI. We conclude, however, that plaintiff submitted
evidence establishing that Buffalo MRI is vicariously liable
for the acts of Dr. Gopal, and "unity of interest does
not turn upon whether the actual wrongdoer or the person or
entity sought to be charged vicariously was served
first" (Connell v Hayden, 83 A.D.2d 30, 48;
see Nani, 39 A.D.3d at 509-510; see generally
Kirk v University OB-GYN Assoc., Inc., 104 A.D.3d 1192,
respect to the third prong, the mistake by plaintiff need not
be an excusable mistake (see Buran, 87 N.Y.2d at
180-181), inasmuch as such a requirement would deemphasize
"the linchpin' of the relation back doctrine[, i.e.,
] notice to the defendant within the applicable limitations
period, " by shifting the focus away from this primary
question (id. at 180). The relation back doctrine is
not satisfied, however, when a plaintiff "omitted a
defendant in order to obtain a tactical advantage in the
litigation" (id. at 181; see Nasca v
DelMonte, 111 A.D.3d 1427, 1429). Here, we conclude that
the third prong was satisfied because plaintiff established
"that [his] failure to include [Dr. Gopal] as a
defendant in the original... complaint was a mistake and
not... the result of a strategy to obtain a tactical
advantage" (Nasca, 111 A.D.3d at 1429 [internal
quotation marks omitted]; see Goldstein, 74 A.D.3d
at 1802). Dr. Gopal's contention that plaintiff should
have obtained his medical records and ascertained Dr.
Gopal's identity sooner is not persuasive considering
that plaintiff sought that very information through his
discovery demands, which went unanswered by Buffalo MRI for a
year, during which time the statute of limitations expired.
In any event, even assuming, arguendo, that plaintiff was
negligent in not ascertaining Dr. Gopal's identity
sooner, we conclude that "there was still a mistake by
plaintiff in failing to identify [Dr. Gopal] ...