Yadgarov & Associates, PLLC, New York (Ronald S. Ramo of
counsel), for appellant.
Kennedys CMK, New York (Frank J. Wenick of counsel), for
Manzanet-Daniels, J.P., Mazzarelli, Andrias, Gesmer, Oing,
Supreme Court, New York County (Martin Shulman, J.), entered
June 14, 2016, dismissing the complaint, and bringing up for
review an order, same court and Justice, entered April 12,
2016, which granted defendant's motion to dismiss the
complaint, and denied plaintiff's cross motion for leave
to amend the complaint, unanimously affirmed, without costs.
Appeal from order, unanimously dismissed, without costs, as
subsumed in the appeal from the judgment.
seeks to recover damages for injuries she allegedly sustained
on July 5, 2012, as a result of her fall from a hospital
stretcher while she was being positioned by an X-ray
technician for a chest Xray. As described by plaintiff in her
affidavit, the technician's conduct in placing
plaintiff's body in a certain position, so as to obtain
accurate imaging in an Xray directed by a physician at
defendant hospital, bore a "substantial relationship to
the rendition of medical treatment by a licensed
physician" (Weiner v Lenox Hill Hosp., 88
N.Y.2d 784, 788 ; Chaff v Parkway Hosp., 205
A.D.2d 571 [2d Dept 1994], lv dismissed in part, denied
in part 84 N.Y.2d 966');">84 N.Y.2d 966 ; see also Lewis-Burnett
v West Side Radiology Assoc., 106 A.D.3d 637');">106 A.D.3d 637 [1st Dept
2013]). Accordingly, plaintiff's complaint sounds in
medical malpractice and was correctly dismissed as untimely
(see CPLR 214-a). The cases relied on by plaintiff
are inapposite since the accidents therein did not occur in
the course of rendering medical treatment, but involved
simple common sense and judgment (see Friedmann v New
York Hosp.-Cornell Med. Ctr., 65 A.D.3d 850');">65 A.D.3d 850 [1st Dept
2009]; Reardon v Presbyterian Hosp. in City of N.Y.,
292 A.D.2d 235');">292 A.D.2d 235 [1st Dept 2002]).
court providently exercised its discretion in denying
plaintiff's cross motion to amend the complaint to assert
claims that defendant's "negligent hiring, "
"disregard of rules on the use of stretchers/hospital
beds in the X-Ray room, " and failure to
"promulgate rules and regulations for the use of
stretchers/hospital beds in the X-Ray room" caused her
proposed claim of failing to follow protocol, stated
"[u]pon information and belief, " implicates
questions of medical competence or judgment linked to the
treatment of plaintiff and sounds in medical malpractice.
Hence, it is time-barred for the same reasons for which the
original complaint was dismissed (see Hazel v Montefiore
Med. Ctr., 243 A.D.2d 344, 345 [1st Dept 1997] [claims
that are "merely reformulations" of malpractice
claims were properly dismissed as time-barred where
malpractice claim was time- barred] ; Glasgow v
Chou, 33 A.D.3d 959, 961 [2d Dept 2006]).
proposed claims for negligent hiring and the failure to
promulgate rules and regulations, also stated "[u]pon
information and belief, " are time-barred unless the
relation back doctrine, codified in CPLR 203(f), applies.
CPLR 203(f) provides, "A claim asserted in an amended
pleading is deemed to have been interposed at the time the
claims in the original pleading were interposed, unless the
original pleading does not give notice of the transactions,
occurrences, or series of transactions or occurrences, to be
proved pursuant to the amended pleading" (see also
Giambrone v Kings Harbor Multicare Ctr., 104 A.D.3d 546,
548 [1st Dept 2013]).
original complaint asserts one cause of action that arose
from plaintiff's Xray on July 5, 2012. The proposed
negligent hiring and failure to promulgate regulations claims
arise from different facts and implicate different duties
based on conduct preceding, and separate and different from,
the alleged negligence of the Xray technician on that date.
Thus, the relation back doctrine is inapplicable because the
facts alleged in the original complaint failed to give notice
of the facts necessary to support the amended pleading
(see Cady v Springbrook NY, Inc., 145 A.D.3d 846');">145 A.D.3d 846 [2d
Dept 2016]; Calamari v Panos, 131 A.D.3d 1088');">131 A.D.3d 1088 [2d
Dept 2015]) Infurna v City of New York, 270 A.D.2d
24 [1st Dept 2000]; Ceneus v Beechmont Bus Serv.,
272 A.D.2d 499');">272 A.D.2d 499 [2d Dept 2000]). "The mere reference to
'negligence' in the original complaint did not give