Opinion
November 10, 1986
Appeal from the Supreme Court, Erie County, Joslin, J.
Present — Dillon, P.J., Callahan, Denman, Green and Lawton, JJ.
Order insofar as appealed from unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In her original complaint plaintiff, a physician in the Department of Neurosurgery at Roswell Park Memorial Institute in Buffalo, alleged that defendant Charles West, the chief surgeon in the department, falsely stated to other physicians that on December 1, 1982 plaintiff was "derelict in the performance of her duties" and "failed to submit the necessary documents and follow guidelines and standards and procedures set down by the Food [and] Drug Administration in clinical experimental projects involving the use of drugs in the treatment of patients." In her amended complaint, deemed by stipulation to have been served on April 2, 1985, plaintiff amplified the slander cause of action alleging that on December 1, 1982 defendant Dr. West stated plaintiff "'was unavailable for patient treatment and failed to submit protocols and to follow procedures in the care and treatment of patients with experimental agents and her unavailability resulted in the death of patient, Joan Ambrosia.'" Defendant moved to dismiss the slander cause of action in the amended complaint on the ground that it was barred by the one-year Statute of Limitations (CPLR 215). Plaintiff cross-moved to transfer the motion to the Justice who had denied, on procedural grounds, an earlier defense motion to dismiss the original complaint. Special Term denied the plaintiff's cross motion and granted defendant's motion to dismiss the slander cause of action as untimely to the extent that the amended complaint "alleges a statement by defendant West that the plaintiff was unavailable for patient treatment and that her unavailability resulted in the death of patient Joan Ambrosia".
Special Term properly denied plaintiff's cross motion. Since the sufficiency of the amended complaint was not an issue decided in the prior motion, there was no need to transfer the case to the Justice who had heard that motion under CPLR 2221.
Special Term erred, however, in ruling that the slander cause of action as alleged in the amended complaint was time barred. Since the allegations in the amended complaint refer to the same parties and the same incident as alleged in the original complaint, the original complaint gave ample notice to defendant Dr. West "of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" (CPLR 203 [e]). Thus, the slander cause of action in the amended complaint is deemed to have been interposed on September 29, 1983 when the claim in the original pleading was made (see, Caffaro v Trayna, 35 N.Y.2d 245; Johnson v Phillips, 115 A.D.2d 299; Dooley v Bacardi Imports, 98 A.D.2d 993; Citibank v Suthers, 68 A.D.2d 790). Since this is within one year from the December 1, 1982 incident in question, the slander cause of action against defendant Dr. West as alleged in the amended complaint should not have been dismissed as untimely, and that cause of action must be reinstated.