WARD v. EASTCHESTER HEALTH CARE CENTER LLC (2006)

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered August 26, 2004, which granted plaintiff's motion to amend the complaint and denied defendant's cross motion to serve an amended answer interposing a statute of limitations defense and to strike those portions of the amended complaint and supplemental bill of particulars sounding in medical malpractice, unanimously affirmed, without costs.

 The original complaint alleged conduct which, if proven, would violate Public Health Law § 2803-c.   The proposed amended complaint alleged no new conduct which purportedly violated the Public Health Law, differing from the original pleading only by specifying that redress for the previously alleged violations was sought under Public Health Law § 2801-d.   That section authorizes a private right of action for the violation of rights enumerated in § 2803-c of the statute (see Zeides v. Hebrew Home for Aged at Riverdale, Inc., 300 A.D.2d 178, 753 N.Y.S.2d 450 [2002];  see also Doe v. Westfall Health Care Ctr., Inc., 303 A.D.2d 102, 755 N.Y.S.2d 769 [2002] ).   Consequently, the amendment could have caused neither surprise nor cognizable prejudice to defendant and the court properly permitted it (see Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d 352, 354-355, 797 N.Y.S.2d 434 [2005] ).   Because plaintiff's claims, regardless of how characterized, were timely interposed, the proposed statute of limitations defense lacks merit (see Thomas Crimmins Contr. Co. v. City of New York, 74 N.Y.2d 166, 170, 544 N.Y.S.2d 580, 542 N.E.2d 1097 [1989];  Lanoce v. Anderson, Banks, Curran & Donoghue, 259 A.D.2d 965, 966, 704 N.Y.S.2d 756 [1999] ).   Defendant's motion to strike portions of the amended complaint and supplemental bill of particulars, on the ground that plaintiff improperly “intermingled” claims for medical malpractice and ordinary negligence, was properly denied.   Defendant failed to demonstrate that the disputed claims do in fact sound in malpractice and are not otherwise permissibly brought, either as ordinary negligence or statutory claims (cf. Zeides, supra ).