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THE RELATION-BACK DOCTRINE APPLIES EVEN WHERE A NEW ACTION HAS BEEN COMMENCED AND CONSOLIDATED WITH A PRIOR ACTION (FIRST DEPT).

The Second Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Rosado, determined the relation-back doctrine applied to the wrongful death action against Dr. Ozcan and reinstated that cause of action. The court noted that the relation-back doctrine applies where, as here, a new action has been commenced and consolidated with a prior action:

Dr. Ozcan does not substantively dispute that the claims in the prior and instant actions arose out of the same conduct or that she is united in interest with Montefiore [Medical Center]. Therefore, the only question to be decided, is whether the third prong of the relation-back doctrine has been established.

Dr. Ozcan, who was named as a defendant in the First Action, should have known that, but for a mistake, the wrongful death claim would have been brought against her as well … .

Application of the relation-back doctrine is proper even where, as here, a new action has been commenced and consolidated with a prior action … . Picchioni v Sabur, 2024 NY Slip Op 04362, First Dept 9–5-24

Practice Point: The relation-back doctrine applies to render an action timely brought even where a new action has been commenced and consolidated with a prior action.

 

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LOSS OF TRANSCRIPT OF LAST DAY OF BENCH TRIAL AND SENTENCING DID NOT PRECLUDE APPEAL.
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