Giambrone v. Kings Harbor Multicare Ctr.
In this medical malpractice action, Mr. Giambrone alleges that he developed a sacral wound after he underwent surgery at Westchester Square Hospital. Following surgery, he then underwent rehabilitation at defendant Kings Harbor, where his wound allegedly progressed to a Stage IV decubitus ulcer. Mr. Giambrone commenced this action against Kings Harbor in August 2009, at which time his wife was not named as a party. In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square, in which his wife was named as a plaintiff and asserted a derivative claim for loss of consortium and spousal services. About seven weeks after the statute of limitations expired in the Kings Harbor action, he moved to amend the Kings Harbor complaint under CPLR 3025(b) to assert his wife’s derivative action. The Supreme Court granted the motion.
On March 21, 2013, the First Department affirmed adopting the Third Department’s position in Anderson v. Carney that the Supreme Court should be permitted to exercise the same discretion it has when considering whether to allow the addition of a plaintiff’s derivative cause of action. The Second and Fourth Departments, however, have taken an opposing view. They have held that "a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f)."
The First Department has now granted leave to appeal to the Court of Appeals, where the Court of Appeals will have an opportunity to resolve this conflict between the Departments.
In this medical malpractice action, Mr. Giambrone alleges that he developed a sacral wound after he underwent surgery at Westchester Square Hospital. Following surgery, he then underwent rehabilitation at defendant Kings Harbor, where his wound allegedly progressed to a Stage IV decubitus ulcer. Mr. Giambrone commenced this action against Kings Harbor in August 2009, at which time his wife was not named as a party. In December 2010, Mr. Giambrone commenced a separate medical malpractice action against Westchester Square, in which his wife was named as a plaintiff and asserted a derivative claim for loss of consortium and spousal services. About seven weeks after the statute of limitations expired in the Kings Harbor action, he moved to amend the Kings Harbor complaint under CPLR 3025(b) to assert his wife’s derivative action. The Supreme Court granted the motion.
On March 21, 2013, the First Department affirmed adopting the Third Department’s position in Anderson v. Carney that the Supreme Court should be permitted to exercise the same discretion it has when considering whether to allow the addition of a plaintiff’s derivative cause of action. The Second and Fourth Departments, however, have taken an opposing view. They have held that "a spouse’s derivative claim cannot be added to a complaint through the relation back provision of CPLR 203(f)."
The First Department has now granted leave to appeal to the Court of Appeals, where the Court of Appeals will have an opportunity to resolve this conflict between the Departments.
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