Ward v. Eastchester Health Care Center, LLC

Nov 9, 2006
Versions:34 A.D.3d 247
823 N.Y.S.2d 398

*248Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered August 26, 2004, which granted plaintiffs 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 section 2803-c of the statute (see Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178 [2002]; see also Doe v Westfall Health Care Ctr., 303 AD2d 102 [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 AD3d 352, 354-355 [2005]). Because plaintiffs 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 NY2d 166, 170 [1989]; Lanoce v Anderson, Banks, Curran & Donoghue, 259 AD2d 965, 966 [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). Concur—Saxe, J.P., Marlow, Gonzalez, Catterson and McGuire, JJ.