HealthNow New York, Inc., Intervenor-Respondent, v. TODORO OB GYN (2008)

 Plaintiff, individually and as administrator of the estate of his wife (decedent), commenced this action seeking damages for the alleged medical malpractice of defendants in their diagnosis and treatment of decedent.   We conclude that Supreme Court properly granted the motion of HealthNow New York, Inc. (HealthNow) seeking permission to intervene in the action pursuant to CPLR 1012 and 1013. HealthNow, decedent's insurer, moved to intervene on the ground that it had a contractual right of subrogation for the expenditures that it made for the medical care provided to decedent.   Contrary to the contention of defendants Carmen Todoro, M.D. and/or Carmen Todoro, M.D., P.C. and OB-GYN Associates of Western New York, P.C. (collectively, Todoro defendants), the fact that HealthNow is barred from commencing its own action against them based on the statute of limitations does not preclude intervention inasmuch as HealthNow's claims relate back to the filing of plaintiff's complaint (see CPLR 203[f];  Omiatek v. Marine Midland Bank, N.A., 9 A.D.3d 831, 781 N.Y.S.2d 389, appeal dismissed 3 N.Y.3d 738, 786 N.Y.S.2d 816, 820 N.E.2d 295;  Kaczmarski v. Suddaby, 9 A.D.3d 847, 779 N.Y.S.2d 394, appeal dismissed 3 N.Y.3d 738, 786 N.Y.S.2d 816, 820 N.E.2d 295).   Contrary to the further contention of the Todoro defendants, CPLR 4545(c) does not preclude a health insurer from seeking subrogation (see Omiatek, 9 A.D.3d at 832, 781 N.Y.S.2d 389;  Kaczmarski, 9 A.D.3d 847, 779 N.Y.S.2d 394).

 We reject the contention of the Todoro defendants that HealthNow's motion was untimely and that they are unduly prejudiced by the delay.   Although HealthNow did not seek to intervene until over four years from the time that it became aware of plaintiff's potential malpractice claims, we conclude that the court neither abused nor improvidently exercised its discretion in granting HealthNow's motion where, as here, the Todoro defendants will suffer no prejudice from the delay (cf. Oparaji v. Weston, 293 A.D.2d 592, 593, 740 N.Y.S.2d 238;  Rectory Realty Assoc. v. Town of Southampton, 151 A.D.2d 737, 737-738, 543 N.Y.S.2d 128).   HealthNow demands no additional discovery, and the Todoro defendants have already conducted discovery on the various medical expenses paid on behalf of decedent.   Contrary to the final contention of the Todoro defendants, the intervention of HealthNow does not increase their liability inasmuch as the complaint sought unspecified damages for all “losses and damages as a result of the defendant[s'] negligence and malpractice.”

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: