SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

159 

CA 12-01405 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. 

 

KATELYN KIRK, AN INFANT CHILD UNDER THE AGE 

OF TEN (10) YEARS, BY HER PARENT AND NATURAL 

GUARDIAN, CHRISTY A. KIRK, AND CHRISTY A. 

KIRK, INDIVIDUALLY, PLAINTIFFS-RESPONDENTS,

 

V MEMORANDUM AND ORDER

UNIVERSITY OB-GYN ASSOCIATES, INC., 

DEFENDANT-APPELLANT, 

ET AL., DEFENDANTS. 

-------------------------------------------- 

JOHN FOLK, M.D., APPELLANT. 

 

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (DANIEL P. LARABY

OF COUNSEL), FOR DEFENDANT-APPELLANT AND APPELLANT.

GREENE & REID, PLLC, SYRACUSE (JAMES T. SNYDER OF COUNSEL), FOR

PLAINTIFFS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Onondaga County (James

P. Murphy, J.), entered October 13, 2011. The order, inter alia,

granted the motion of plaintiffs for leave to file and serve an

amended summons and complaint to substitute John Folk, M.D. as a

party. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this medical malpractice action

seeking damages for injuries sustained by Katelyn Kirk (infant

plaintiff) during her delivery. The complaint named as defendants the

hospital where the delivery occurred, University OB-GYN Associates,

Inc., a medical practice group (University Associates), Robert

Silverman, M.D., and “John Doe, M.D. and Jane Roe, M.D.”

(collectively, defendant physicians). The complaint alleged that

defendant physicians were employed by or associated with University

Associates and committed malpractice in their prenatal care and

treatment of the infant plaintiff. Approximately one year after the

expiration of the statute of limitations, plaintiffs moved for leave

to amend their complaint by substituting nonparty John Folk, M.D.’s

name in place of John Doe, M.D. Plaintiffs contended in support of

their motion that, although Dr. Silverman was the primary obstetrician

for plaintiff Christy A. Kirk during her pregnancy, he was unavailable

to deliver the infant plaintiff. Plaintiffs alleged that, after
-2- 159 

CA 12-01405 

filing the complaint, they became aware that Dr. Folk, who was also

employed by or associated with University Associates, was the

attending physician who delivered the infant plaintiff and thus was “a

proper party to th[e] action.” 

Contrary to the contention of University Associates and Dr. Folk

(collectively, appellants), Supreme Court properly granted the motion. 

Plaintiffs met their burden of establishing the applicability of the

relation back doctrine (see generally Cardamone v Ricotta, 47 AD3d

659, 660), and appellants failed to raise a triable issue of fact (see

generally Zuckerman v City of New York, 49 NY2d 557, 562). The

relation back doctrine, set forth in Brock v Bua (83 AD2d 61, 68-71),

adopted by the Court of Appeals in Mondello v New York Blood Ctr. -

Greater N.Y. Blood Program (80 NY2d 219, 226), and refined in Buran v

Coupal (87 NY2d 173, 177-182), allows the addition of a party after

the expiration of the statute of limitations if (1) both claims arose

out of the same conduct, transaction, or occurrence, (2) the

additional party is united in interest with the original party, and by

reason of that relationship can be charged with notice of the

institution of the action such that he or she will not be prejudiced

in maintaining a defense on the merits, and (3) the additional party

knew or should have known that, but for a mistake by the plaintiff as

to the identity of the proper parties, the action would have been

brought against the additional party as well (see Buran, 87 NY2d at

178; Doe v HMO-CNY, 14 AD3d 102, 105; see also CPLR 203 [b]). “[T]he

‘linchpin’ of the relation back doctrine [is] notice to the defendant

within the applicable limitations period” (Buran, 87 NY2d at 180).

Appellants do not dispute that the first prong of the relation

back doctrine is satisfied because the claims against Dr. Folk and the

original defendants arise out of the same occurrence, i.e., the infant

plaintiff’s birth, and we conclude that the second prong is satisfied

as well (see id. at 178-179). With respect to the third prong, the

Court of Appeals made it clear that “New York law requires merely

mistake—not excusable mistake—on the part of the litigant seeking the

benefit of the doctrine” (id. at 176). Appellants contend that here

there was no mistake and only neglect on the part of plaintiffs. We

agree with plaintiffs, however, that even if they were negligent,

there was still a mistake by plaintiffs in failing to identify Dr.

Folk as a defendant.

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court