The following papers numbered 1 to 3 read on this motion noticed on December 6, 2019. PAPERS NUMBERED NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1 ANSWERING AFFIDAVIT AND EXHIBITS 2 REPLY AFFIDAVIT AND EXHIBITS 3 UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS: The defendant, MOHAMMAD RASHID CHAUDHRY (Dr. Chaudhry), moves for summary judgment (CPLR 3212) and dismissal of the instant medical malpractice and wrongful death complaint on the theory that it is time barred by the applicable statute of limitations. On August 15, 2008, plaintiff commenced an initial medical malpractice and wrongful death action against only one defendant, BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER (Brookdale Hospital). On October 14, 2016, plaintiff commenced a second almost identical medical malpractice and wrongful death action that now included the other defendants. On January 8, 2018, these two actions were consolidated under the earlier index number. The complaints alleged, inter alia, negligence in connection with treatment rendered to decedent over ten years earlier, in March 2006. Although the applicable statute of limitations is two years and six months (CPLR §214-a), there is no dispute that it was tolled for some time because decedent was in a comatose condition until her death on August 4, 2016. In October 2006, Gregory Graves was appointed the decedent’s guardian. As previously mentioned, a medical malpractice action must be commenced within two years and six months of the date of accrual, which is the date the malpractice allegedly takes place. (CPLR §214-a.) The statute of limitation is tolled for disabled individuals who, because of an overall inability to function in society, are unable to protect their legal rights. (CPLR §208; Thompson v. Metropolitan, 112 AD3d 912 [2nd Dept 2013].) Given decedent’s comatose condition, she was considered a disabled person entitled to this tolling provision (Stewart v. Tetenbaum, 206 AD2d 418 [2nd Dept 1994]); however, this entitlement ended once a guardian was appointed. (Hernandez v. NY Health & Hospital, 78 NY2d 687 [1991].) Applying these rules to this action results in the statute of limitation commencing on October 30, 2006, which is the date Gregory Graves was appointed the guardian for the decedent. And as Dr. Chaudhry correctly points out, this means that plaintiff had until April 2009 to commence a medical malpractice action against him. Given the aforementioned, the court is satisfied that Dr. Chaudhry met his burden of showing that the October 14, 2016-action was commenced some seven years after the applicable statute of limitations, thereby establishing an entitlement to summary judgment. (Zuckerman v. City of NY, 49 NY2d 557 [1980].) The burden now shifts to the plaintiff to establish issues of fact, (Kosson v. Algaze, 84 NY2d 1019 [1995]), to warrant a trial. In opposition, plaintiff alleges that the 2016 action against Dr. Chaudhry should relate back to the 2008 action brought against Brookdale Hospital, thereby tolling the statute of limitations. (CPLR §203(f).) Section 203(f) of the CPLR is referred to as the relation-back doctrine in which claims asserted against a defendant in an amended filing relate back to claims previously asserted against a co-defendant for Statute of Limitations purposes where the two defendants are united in interest. (Buran v. Coupal, 87 NY2d 173 [1995]; DeLuca v. Baybridge, 5 AD3d 533 [2nd Dept 2004].) As originally envisioned, the relation-back doctrine was intended to apply to those situations in which a plaintiff sought to amend a complaint to add a party or a cause of action. (Brock v. Bua, 83 AD2d 61 [2nd Dept 1981], abrogated by Buran v. Coupal, 87 NY2d 173 [1995].) But that is not the case here because Dr. Chaudhry was not named as a defendant in the earlier action against Brookdale Hospital, and leave was not sought by plaintiff to add Dr. Chaudhry as an additional defendant in the earlier action. Yet despite the fact that CPLR §203(c) speaks of the relation-back doctrine applying to claims “interposed against the defendant or co-defendant united in interest with such defendant when the action is commenced,” the doctrine has also been applied to separate actions which are ultimately consolidated. (Deluca, 5 AD3d 533; Xavier v. RY Management, 45 AD3d 677 [2nd Dept 2007]; Guilderland v. Texaco, 159 AD2d 829 [3rd Dept 1990].) The current three part test in applying the relation-back doctrine was first enunciated by the Second Department in Brock, (83 AD2d 61), then adopted by the Court of Appeals in Mondello v. NY Blood, (80 NY2d 219 [1992]), and subsequently modified in Buran, (87 NY2d 173). Buran was a trespass action arising out the erection of a seawall from property owned jointly by a husband and wife that protruded across plaintiff’s property. The initial action commenced in 1979 against the husband only, and in 1982, the husband filed an amended answer that now sought dismissal based on plaintiff’s failure to name a necessary party (i.e., his wife as co-owner). Plaintiff commenced a second identical action in 1989 that now included the wife as a defendant. The Court of Appeals held that the trial court acted within its discretion in permitting the relation back of plaintiff’s 1989 complaint against the wife to the 1979 claims against the husband. The three part Buran test that must be satisfied in order for claims against one defendant to relate back to claims asserted against another include: (1) both claims arise 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 he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well. The first part of the Buran test is that the claims must arise out of the same conduct, transaction or occurrence. A review of the 2008 complaint reveals the following allegations: decedent was treated at Brookdale Hospital for chronic hypertension and epistaxis1 on March 9, 2006, and released; on March 10, decedent returned to Brookdale Hospital to have the plug inserted on March 9 removed from her right nostril; on March 11, decedent was admitted to Brookdale Hospital suffering from a stroke, where she remained until April 4, 2006, at which time she was removed to a long term care facility. The 2016 complaint alleges, inter alia, that “Defendant, Mohammad Rashid Chaudhry and Defendant hospital, its staff, agents, and employees affected the nasal packing of the [decedent's] nostrils either by balloons or other surgical methods but they failed to properly install and monitor the installation and also failed to change the medications she was receiving and to upgrade [decedent] to Intensive Care Unit Monitoring.” In support of her position that the claims alleged in the 2008 action and the 2016 action arise out of the same transaction, plaintiff refers to Dr. Chaudhry’s deposition taken on September 24, 2014, which was conducted during the discovery stage of the 2008 action against Brookdale Hospital. It appears from the deposition transcript of Dr. Chaudhry, who specialized in ENT, that his only involvement in the care and treatment of the decedent was on March 13, 2006, when he was “called in on a consult” for epistaxis. Keep in mind that the 2008 complaint alleges multiple dates of negligence (i.e., March 9 through April 4) for the treatment of both chronic hypertension and epistaxis, by multiple unnamed Brookdale Hospital staff, agents and employees. Given the general and conclusory language used in the complaint, if a very broad definition is likewise used to describe “the same conduct, transaction or occurrence,” then almost anything that happened to, and anyone who had contact with, the decedent during her 26 day stay at Brookdale Hospital would be included. Such a broad definition would inevitably included Dr. Chaudhry’s limited role in the treatment of decedent. This Court is not so convinced that the Court of Appeals in Buran intended such a broad definition, but of course there are still two more parts under Buran that should help resolve the issue at hand. As for the second part, it must be noted that parties are considered united when their interest in the subject matter is such that they will stand or fall together with respect to plaintiff’s claim. (Xavier, 45 AD3d 677.) It is not entirely clear from the motion papers whether Dr. Chaudhry is an employee of Brookdale Hospital. In the medical malpractice realm, the general rule is that a medical facility will be held vicariously liable for the malpractice of its employees (Bing v. Thunig, 2 NY2d 656 [1957]), or for non-employees on the theory of agency/control in fact, or in the alternative theory of apparent/ostensible agency. (Hill v. St. Clare’s, 67 NY2d 72 [1986].) Hence, regardless of whether a doctor is an employee or independent contractor, unity of interest may exists where defendant-medical facility can be held vicariously liable for the conduct of said doctor. (Mondello, 80 NY2d 219; Xavier, 45 AD3d 677.) Plaintiff’s 2008 complaint does not allege that Dr. Chaudhry was an employee of Brookdale during the time of the alleged malpractice, or that any agency relationship existed between them to give rise to vicarious liability. It appears from Dr. Chaundhry’s deposition that he is not an employee of Brookdale Hospital when it comes to patient care, but is an independent contractor. In addition, Dr. Chaudhry’s answer includes as a second affirmative defense an allegation that “any injuries sustained by [decedent]…were not caused or contributed to by reason of any careless…on the part of this answering defendant.” In other words, Dr. Chaudhry may establish at trial that any injury sustained by decedent was not caused by him, but was caused by an employee of Brookdale Hospital. In addition, the Bill of Particulars contains numerous allegations of direct negligence against Brookdale that are entirely separate and distinct from the allegations of negligence against Dr. Chaundhry. None of the aforementioned conclusively establishes a unity in interest, or a lack thereof. As for the third and final part of the Buran test, plaintiff alleges in equally conclusory language that but for a mistake in failing to name Dr. Chaudhry in the 2008 action, he would have been named in the initial complaint, and Dr. Chaundry should have been aware of this error. Plaintiff relies upon the fact that Dr. Chaudhry was deposed during the discovery stage of the 2008 action. However, this deposition took place more than six years after the 2008 action had commenced, and more than two years prior to commencement of the second action in 2016. And but for this deposition, plaintiff provides no proof that Dr. Chaundhry had actual or constructive knowledge of the 2008 action, which only named one defendant (i.e., Brookdale) and no “John/Jane Doe,” until he was served with the 2016 summons and complaint. (Lopez v. Wyckoff, 78 AD3d 664 [2nd Dept 2010].) Given the aforementioned, it is difficult to see how Dr. Chaudhry could have been on notice that plaintiff also intended to include him in the initial complaint in 2008. As the burden is on plaintiff to satisfy all of the elements of the relation-back doctrine, based on the aforementioned, the Court finds that he failed to do so. Therefore, the instant motion by Dr. Chaudhry for summary judgment is granted and plaintiff’s claims against him are dismissed. Dr. Chaudhry is directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court. Dated: March 3, 2020
