Opinion
24030/15
07-26-2018
Gregory GRAVES, as Administrator of the Estate of Lovely Graves, deceased, Plaintiff, v. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, David Tavdy and Mohammad Rashid Chaudhry, Defendants.
Attorney for Plaintiff: Robert L. Sims, Jr., Esq., Steven, Hinds & White, PC, 75 Maiden Lane, Suite 222, New York, New York 10038, (212)864-4445 Attorney for Defendant, Brookdale: Christiana M. Fraser, Esq., Wilson, Elser, Moskowitz, et. al., 150 East 42nd Street, New York, New York 10017, (212)490-3000 Attorney for Defendant, Tavdy: Joan M. Ruddy, Esq., Brown, Gruttadaro, Gaujean, et. al., 1 North Broadway, Suite 1010, White Plains, New York 10601, (914)949-5300
Attorney for Plaintiff: Robert L. Sims, Jr., Esq., Steven, Hinds & White, PC, 75 Maiden Lane, Suite 222, New York, New York 10038, (212)864-4445
Attorney for Defendant, Brookdale: Christiana M. Fraser, Esq., Wilson, Elser, Moskowitz, et. al., 150 East 42nd Street, New York, New York 10017, (212)490-3000
Attorney for Defendant, Tavdy: Joan M. Ruddy, Esq., Brown, Gruttadaro, Gaujean, et. al., 1 North Broadway, Suite 1010, White Plains, New York 10601, (914)949-5300
Joseph E. Capella, J.
The following papers numbered 1 to 4 read on this motion noticed on March 7, 2018, and duly submitted on June 13, 2018, on the Motion Calendar of ___________.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1
ANSWERING AFFIDAVIT AND EXHIBITS 2-3
REPLY AFFIDAVIT AND EXHIBITS 4
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
The defendant, DAVID TAVDY (Tavdy), moves for summary judgment ( CPLR 3212 ) and dismissal of the instant medical malpractice and wrongful death complaint dated October 16, 2016, on the theory that it is time barred by the applicable statute of limitations. The complaint alleges medical malpractice in connection with treatment rendered to decedent in March 2006, with decedent remaining in a comatose condition until her death on August 4, 2016. It specifically alleges, inter alia , that Tavdy deviated from the reasonable standard of care by failing to effectively monitor or supervise decedent's ingestion of solids, failed to take necessary precautions in the administering of Ambien and Xanax, and the "malpractice, injuries and resulting death (emphasis added) ... was caused solely by the negligence of the defendants." In October 2006, Gregory Graves was appointed the decedent's guardian. An earlier action was commenced by the plaintiff in August 2008 against co-defendant, BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER (Brookdale), only; however, it was consolidated with the instant action on January 8, 2018.
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.) However, 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.) And of course a person that is comatose, as was the decedent, is considered a disabled person entitled to this tolling provision ( Stewart v. Tetenbaum , 206 AD2d 418 [2nd Dept 1994] ); however, this entitlement ends once a guardian is 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 therefore, Tavdy correctly points out that plaintiff had until April 2009 to commence a medical malpractice action. Given the aforementioned, the court is satisfied that Tavdy met his burden of showing that the instant medical malpractice 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].) As the court's function in deciding a motion for summary judgment is issue finding rather than issue determination ( Sillman v. Twentieth Century-Fox , 3 NY2d 395 [1957] ), the burden now shifts to the plaintiff or co-defendants to establish issues of fact, ( Kosson v. Algaze , 84 NY2d 1019 [1995] ), to warrant a trial.
In opposition, plaintiff and Brookdale argue that pursuant to section 5-4.1 of the New York Estate, Powers and Trust Law (EPTL), the representative of a decedent may maintain a wrongful death action within two years of decedent's death. ( Scanzano v. Horowitz , 49 AD3d 855 [1st Dept 2008].) According to Brookdale, since decedent died August 4, 2016, then this action, which commenced October 2016, is well within the appropriate time period. The opposition, however, fails to recognize that the instant wrongful death claim is predicated upon an allegation of medical malpractice. And in these instances, where the statute of limitations on the underlying medical malpractice claim lapsed during the decedent's lifetime, a wrongful death action based on an alleged malpractice claim must be dismissed, even if commenced within two years of death. ( Bevinetto v. Plotnick , 51 AD3d 612 [2nd Dept 2008] ; Helgans v. Plurad , 255 AD2d 554 [2nd Dept 1998].) While the opposition papers correctly cite Scanzano for the proposition that a decedent's representative may maintain a wrongful death action within two years of decedent's death, Scanzano equally supports Tavdy's position. In addition to the aforementioned proposition, the Second Department in Scanzano likewise held that at the time of the decedent's death, the decedent had a cause of action to recover damages for medical malpractice that was not time-barred. In other words, it reemphasized the rule that a wrongful death action commenced within two years of a patient's death that is based on a claim of medical malpractice is considered timely if, at the time of death, the medical malpractice action was not time-barred. So the mere fact that the instant wrongful death claim was commenced within two years of decedent's death does not cure the fact that the medical malpractice claim was already time-barred.
The plaintiff also alleges in its opposition papers that the complaint against Tavdy should relate back to the August 2008-complaint brought against Brookdale, thereby tolling the statute of limitations. ( CPLR § 203(c).) Section 203(c) of the CPLR refers to the relation-back doctrine as applying to claims "interposed against the defendant or co-defendant united in interest with such defendant when the action is commenced." In most instances, the relation back doctrine is sought by plaintiffs seeking to amend a complaint to add a party or a cause of action. ( Buran v. Coupal , 87 NY2d 173 [1995].) Although Tavdy was not named as a defendant in the earlier action against Brookdale, and leave was not sought by plaintiff to add Tavdy as an additional defendant in said earlier action, the relation-back doctrine has nonetheless been applied to actions like this which have been consolidated. ( Xavier v. RY , 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 v. Bua , (83 AD2d 61 ), then adopted by the Court of Appeals in Mondello v NY Blood , (80 NY2d 219 ), and subsequently modified in Buran , (87 NY2d 173 ). 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 plaintiff does not address the first part of the Buran test — that the claims must arise out of the same conduct, transaction or occurrence. As for the second part, it must be noted that parties are considered to be 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.) That is why within the context of a negligence action, unity of interest exists where one defendant will be held vicariously liable for the conduct of the other defendant. ( Mondello , 80 NY2d 219 ; Xavier , 45 AD3d 677.) Vicarious liability, similar to products liability, is an exception to the general proposition that limits one's liability to one's own wrongdoing. ( Mondello , 80 NY2d 219.) In the medical malpractice realm, the general rule is that a medical facility will be held vicariously liable for the malpractice of its employee(s). ( Bing v. Thunig , 2 NY2d 656 [1957].) A medical facility may also be held vicariously liable 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].) For example, apparent/ostensible agency has been applied to hold a medical facility responsible for the malpractice of a physician providing services there, despite the physician's status as an independent contractor, where medical care was sought by a patient from the facility rather than from a particular physician. ( Hill , 67 NY2d 72.) Of course the application of this rule depends upon whether the plaintiff could have reasonably believed, based upon all of the surrounding circumstances, that the physician was provided by the facility or was otherwise acting on their behalf ( Soltis v. State of New York , 172 AD2d 919 [3rd Dept 1991] ).
As proof that they are not united in interest, Tavdy notes that the Bill of Particulars contains numerous allegations of direct negligence against Brookdale that are entirely separate and distinct from the allegations of negligence against him. In addition, he also notes that Brookdale has joined the plaintiff in opposing the instant motion. And except for some conclusory allegations of vicarious liability, the plaintiff fails to set forth any specific facts to support same. The plaintiff does not allege that Tavdy was an employee of Brookdale at the time of the alleged malpractice, or that any agency relationship existed between them to give rise to vicarious liability. Given the aforementioned, the plaintiff has not satisfied the second part of the Buran test. As for the third and final part of the Buran test, the plaintiff alleges in equally conclusory language "that but for his mistake, the defendant doctors, and in particular, Defendant [sic] Tavdy, would have been named in the initial complaint, and that Defendants [sic] would have been aware of this error." Tavdy correctly points out that both plaintiff and Brookdale provided no proof that he had actual or constructive knowledge of the initial 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].) The burden was on plaintiff to satisfy all of the elements of the relation-back doctrine, and he failed to do so.
Therefore, the instant motion by Tavdy for summary judgment is granted and the plaintiff's claims against him are dismissed. Tavdy 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.