PLAINTIFF IN THIS MEDICAL MALPRACTICE, WRONGFUL DEATH ACTION SHOULD NOT HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING A PARTY AFTER THE STATUTE OF LIMITATIONS HAD RUN; TWO OF THE THREE PRONGS OF THE RELATION BACK DOCTRINE WERE NOT DEMONSTRATED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the relation back doctrine did not apply and plaintiff’s motion to amend the complaint to add a party after the statute of limitations had run should not have been granted. Initially plaintiff named two individuals as defendants, Smithem and Dey, in this medical malpractice, wrongful death action. After the statute had run plaintiff’s attorney realized Smithem and Dey were not the right parties and sought to amend the complaint to add Crystal Run Healthcare. Plaintiff acknowledged that Crystal Run employees Smithem and Dey never performed the conduct alleged in the complaint, so Crystal Run was not united in interest with the named defendants. In addition plaintiff failed to demonstrate the correct parties could not have been identified before the statute of limitations ran:

The relation back doctrine allows a plaintiff to amend the complaint to add a party even though the statute of limitations has expired if the plaintiff satisfies three conditions: (1) both claims must arise out of the same occurrence; (2) the proposed defendant must be united in interest with the original defendants; and (3) the proposed defendant must have known or should have known that, but for a mistake by the plaintiff as to the proposed defendant’s identity, the action would have been also brought against it … . …

Supreme Court found that Crystal Run was united in interest with both Smithen and Dey by virtue of an employer-employee relationship and principles of vicarious liability. Although such circumstances can lead to a finding of unity in interest … , plaintiff has candidly admitted that Smithen and Dey are free from any and all liability because they never performed the conduct that is the basis of the complaint. As such, plaintiff has vitiated any claim of vicarious liability. …

Although plaintiff alleged that Smithen and Dey were employed by Catskill Regional Medical Center in the complaint, the answers of both the hospital and Smithem denied said allegation. Additionally, plaintiff served Smithem (and attempted to serve Dey) at Crystal Run. Plaintiff’s failure to act on this knowledge prior to the expiration of the statute of limitations is not the type of mistake contemplated under the relation back doctrine … . Fasce v Smithem, 2020 NY Slip Op 07010, Third Dept 11-25-20