Mangan v. White Plains Hospital Medical Center

136 A.D.2d 608, 523 N.Y.S.2d 587, 1988 N.Y. App. Div. LEXIS 355

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 19, 1988
• Status: Published

Opinion

—In a negligence action to recover damages for pain and suffering and for wrongful death, the defendant William Zarowitz appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), dated March 9, 1987, which granted the plaintiffs motion to amend her complaint to join him as an additional party defendant and to serve him with a supplemental summons and amended complaint.

Ordered that the order is affirmed, with costs to the plaintiff payable by the appellant.

It was not improper to grant the plaintiff leave to amend the complaint under CPLR 3025 (b), and to substitute the defendant Zarowitz’s real name for the fictitious name appearing in the summons and complaint (see, Duffy v Horton Mem. Hosp., 119 AD2d 847).

The defendant Zarowitz was "on call” at the defendant hospital’s emergency room on May 22, 1983, the date of the alleged negligent treatment of the decedent, and was subject to the hospital’s rules and regulations regarding emergency room physician care. The hospital bill sent to the deceased included a charge attributable to medical services rendered to the deceased by the defendant Zarowitz. Since, under such circumstances, the hospital would be vicariously liable for the negligence committed by the defendant Zarowitz (see, Felice v St. Agnes Hosp., 65 AD2d 388; Mduba v Benedictine Hosp., 52 AD2d 450), the defendant Zarowitz and the hospital are united in interest (see, Connell v Hayden, 83 AD2d 30). Mollen, P. J., Thompson, Rubin and Spatt, JJ., concur.