Duffy v. Horton Memorial Hospital

109 A.D.2d 927, 486 N.Y.S.2d 402, 1985 N.Y. App. Div. LEXIS 47450

Opinion

Harvey, J.

Appeal from an order of the Supreme Court at Special Term (Williams, J.), entered January 3, 1984 in Sullivan County, which granted third-party defendant’s motion for reargument and denied plaintiff leave to serve an amended complaint.

In August 1979, plaintiff and her husband commenced a medical malpractice action alleging that defendants had failed to properly diagnose the husband’s lung cancer. He died in May 1981 as a result of that condition and Special Term approved an amendment of the complaint to include an action for wrongful death. In June 1981, defendants commenced a third-party action against Dr. Isidore Greenberg.

In November 1982, plaintiff was granted permission to amend her complaint to assert a direct cause of action against third-party defendant, who opposed the motion. Third-party defendant moved for reargument, following which Special Term vacated its prior order and denied plaintiff leave to serve an amended complaint on third-party defendant. This appeal ensued.

Footnotes

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This court’s decision in Village of St. Johnsville v Travelers Indent. Co. (93 AD2d 932) was handed down shortly after Special Term had granted plaintiff leave to serve an amended complaint on third-party defendant. Since the holding in St. Johnsville would have necessitated a reversal of Special Term’s order, it was a provident exercise of discretion to entertain third-party defendant’s belated motion for reargument (Foley v Roche, 86 AD2d 887, lv denied 56 NY2d 507; Fitzpatrick v Cook, 58 AD2d 642). A motion for reargument is addressed to the court’s discretion and enables a party to alert the court to the fact that it may have misapplied a legal principle. Thus, reargument is properly permitted in the instant case (CPLR 2221; Flynn v Town of N. Hempstead, 114 Misc 2d 125,126, affd 97 AD2d 430).

As we noted in St. Johnsville, this court is not of the view that the relation back provision contained in CPLR 203 (e) permits a plaintiff to impose a direct claim against third-party defendant by considering the date that third-party defendant was impleaded as the applicable date of reference. A claim asserted in the amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed (CPLR 203 [e]). We continue to hold to the view that courts are not authorized to permit plaintiff to assert an otherwise time-barred claim in an amended pleading by considering the date that a third-party defendant was impleaded as being “the time the claims in the original pleading were interposed” (CPLR 203 [e]; cf. Velez v Springer, 102 AD2d 823). On reargument, Special Term properly vacated its prior order and denied plaintiff leave to serve an amended complaint on third-party defendant (Village of St. Johnsville v Travelers Indem. Co., supra, p 933; Knorr v City of Albany, 58 AD2d 904).

Order affirmed, without costs. Mahoney, P. J., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.

Subsequent to the order of Special Term being appealed, Dr. Greenberg died and the executrices of her estate have been substituted as third-party defendants.