GRAVES v. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER (2019)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered on or about July 26, 2018, which granted the motion of defendant David Tavdy, M.D. for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

The court properly dismissed the complaint as against Tavdy as time-barred (CPLR 214–a).  The statute of limitations on the medical malpractice cause of action began to run on October 30, 2006, when plaintiff was appointed the decedent's guardian, and expired in April 2009, and the subject action was not commenced until October 2016.  Moreover, since the statute of limitations on the malpractice action expired before the decedent's death and the wrongful death action was predicated on malpractice, that cause of action was also time-barred (see Bevinetto v. Steven Plotnick, M.D., P.C., 51 A.D.3d 612, 615, 857 N.Y.S.2d 694 [2d Dept. 2008] ).

Plaintiff failed to raise an issue of fact as to whether the statutes of limitation on the causes of action against Tavdy were otherwise inapplicable (see Wilson v. Southampton Urgent Med. Care, P.C., 112 A.D.3d 499, 977 N.Y.S.2d 224 [1st Dept. 2013] ).  Although plaintiff attempted in invoke the relation-back doctrine, he did not show that defendant hospital and Tavdy were so united in interest that Tavdy could be charged with notice of the first action that plaintiff commenced against the hospital or that Tavdy knew or should have known that he intended to sue him (see Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995];  Garcia v. New York–Presbyt. Hosp., 114 A.D.3d 615, 616, 981 N.Y.S.2d 84 [1st Dept. 2014];  compare Rivera v. Wyckoff Hgts. Med. Ctr., 175 A.D.3d 522, 107 N.Y.S.3d 55 [2d Dept. 2019] ).

We have considered plaintiff's remaining arguments and find them unavailing.