91 A.D.2d 658 | N.Y. App. Div. | 1982
— In two interrelated medical malpractice actions, defendant Lydia E. Hall Hospital appeals from so much of an order of the Supreme Court, Nassau County (Becker, J.), dated March 15, 1982, as (1) denied its motion to dismiss the complaint in Action No. 1 for lack of personal jurisdiction, (2) granted the plaintiffs’ cross motion, inter alia, to strike the affirmative defense of the Statute of Limitations in Action No. 2 and estopped the appellant from asserting the defense in that action, and (3) directed the attorney for the appellant “to serve on counsel for all parties appearing in actions in which either ‘Syosset Hospital’ or ‘Lydia E. Hall Hospital’ have been named as defendants, written notification that the hospitals [in question] are tradenames” utilized by their sole owner, Dr. Carl H. Neuman. Order reversed insofar as appealed from, on the law, without costs or disbursements, appellant’s motion to dismiss the complaint in Action No. 1 granted, arid plaintiffs’ cross motion, inter alia, to strike the affirmative defense of the Statute of Limitations in Action No. 2 denied. On June 12,1978 plaintiffs Leo and Mildred Provosty commenced a medical malpractice action (Action No. 1) against Lydia E. Hall Hospital and several doctors, in which they erroneously alleged in the “first” paragraph of their complaint that “the defendant, Lydia E. Hall Hospital [is] a domestic corporation, licensed to do business and doing business in the State of New York”. Subsequently, on September 18, 1978, the hospital, by its attorney, Morris Ehrlich, P. C., interposed an answer in which it specifically denied the allegations of the “first” paragraph of the complaint, and alleged, inter alia, as an affirmative defense that the court lacked jurisdiction “over the person of the defendant Lydia E. Hall Hospital”. In addition, the hospital interposed a cross claim for contribution and/or indemnification against the various individual doctors named in the complaint. It is undisputed that Lydia E. Hall Hospital is not a corporation, and that it is a “trade name” employed by its sole owner, Dr. Carl H. Neuman. Moreover, it is further undisputed that a certificate of doing business under the assumed name “Lydia E. Hall Hospital” had been filed by Dr. Neuman in the Nassau County Clerk’s office in the summer of 1974 (see General Business Law, § 130). In addition, it appears without contradiction that at an examination before trial conducted on July 19, 1979, i.e., three months prior to the expiration of the applicable Statute of Limitations, the plaintiffs’ attorney was apprised of the fact that the hospital in question was a