Ayoola v. New York City Health and Hospitals Corporation et al

Filing 46

MEMORANDUM AND ORDER denying 40 Motion for Judgment on the Pleadings; denying 44 Motion to Dismiss: For the reasons stated in the attached Memorandum and Order, Branan's Motions for Judgment on the Pleadings and Dismissal are denied. This action is committed to the assigned Magistrate Judge for continued supervision of all pre-trial proceedings. Ordered by Judge Roslynn R. Mauskopf on 8/29/2016. (Mauskopf, Roslynn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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KEHINDE AYOOLA,
Plaintiff,

MEMORANDUM AND ORDER
13-CV-7295 (RRM) (PK)

- against NEW YORK CITY HEALTH AND HOSPITALS
CORPORATION (HHC), RICHARD BRANAN,
M.D., and VIDYA M. REDDY, M.D.,
Defendants.
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ROSLYNN R. MAUSKOPF, United States District Judge.

Plaintiff Kehinde Ayoola commenced this action on December 23, 2013, alleging
medical malpractice and violations of the Emergency Medical Treatment and Active Labor Act
(“EMTALA”), 42 U.S.C. § 1395dd(a)–(b), against defendants New York City Health and
Hospitals Corporation, Richard Branan, M.D., and Vidya M. Reddy, M.D. (Compl. (Doc. No.
1).) Defendant Branan now moves for judgment on the pleadings pursuant to Federal Rule of
Civil Procedure 12(c). (Def.’s Mot. J. (Doc. No. 44).) Ayoola opposes the motion. (Pl.’s Opp’n
(Doc. No. 43).) For the reasons below, Branan’s motion is denied.
BACKGROUND
On October 4, 2012, plaintiff Kehinde Ayoola presented for treatment at the Emergency
Department at Kings County Hospital Center, run by defendant New York City Health and
Hospitals Corporation (“HHC”). (Am. Compl. (Doc. No. 27) at ¶ 18; Pl.’s Opp’n at 4.) Ayoola
complained of a severe headache. (Am. Compl. at ¶ 42; Pl.’s Opp’n at 4.) She was treated by
defendant Richard Branan, M.D., among other treatment providers. (Am. Compl. at ¶¶ 18, 36,
43.) Dr. Branan, a neurosurgeon, ordered a CT scan, which demonstrated that Ayoola had a
paratentorial subdural hematoma. (Id. at ¶¶ 40, 44–45.) Nevertheless, shortly after midnight on
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October 5, 2012, Ayoola was discharged over the objections of her family that Ayoola was in
severe pain, had shortness of breath, and was slurring her speech. (Id. at ¶¶ 46–47.) Later the
same day, Ayoola was rushed to North Shore Hospital where she underwent surgery. (Id. at
¶ 49.)
On December 23, 2013, Ayoola initiated this lawsuit against HHC and her treatment
providers, listed as John Does, alleging that she was negligently discharged without her medical
condition being stabilized. (Compl. at ¶¶ 30–36.) In March 2015, Ayoola amended her
complaint to include her primary care physician. (First Am. Compl. (Doc. No. 16).) While
Ayoola could have added Branan at the same point, it appears that the parties were trying to
reach an agreement as to whether or how to add the defendant physicians associated with HHC.
(3/5/15 Minute Entry (Doc. No. 15) at ¶ 2; Pl.’s Opp’n at 5.) On July 10, 2015, Judge
Pohorelsky granted Ayoola 14 days to file and serve an amended complaint on “the
neurosurgeon previously named as ‘John Doe.’” (7/10/15 Minute Entry (Doc. No. 26) at ¶ 2
(entered 7/14/15).) On July 29, 2015, Ayoola filed the operative Amended Complaint, naming
defendant Branan. (Am. Compl.) Ayoola then served Branan through HHC after HHC informed
Ayoola in writing that Branan consented to service at their Office of Risk Management. (Pl.’s
Opp’n at 6.)1 Branan now argues that all claims against him are barred by the two and a half
year statute of limitations on medical malpractice claims, which expired on April 5, 2015.
STANDARD OF REVIEW
Judgment on the pleadings is appropriate only where all material facts are undisputed and
“a judgment on the merits is possible merely by considering the contents of the pleadings.”
Mennella v. Office of Court Admin., 938 F. Supp. 128, 131 (E.D.N.Y. 1996), aff’d, 164 F.3d 618

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It appears the same representation was made by the parties to Judge Pohorelsky. (7/29/15 Minute Entry (Doc. No.
29) at ¶ 1 (“Counsel for [HHC] is authorized to accept service and accordingly service shall be made forthwith.”).)

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(2d Cir. 1998) (citing Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988)). In
all other respects, a motion brought pursuant to Federal Rule of Civil Procedure 12(c) is analyzed
under the same standard applicable to a motion under Rule 12(b)(6). See Burnette v. Carothers,
192 F.3d 52, 56 (2d Cir. 1999). Thus, the Court’s review is limited to the facts alleged or
incorporated by reference in the complaint, documents attached to the complaint, and matters of
which the Court may take judicial notice. See Chambers v. Time Warner, Inc., 282 F.3d 147,
153 (2d Cir. 2002); Diamond v. Local 807 Labor-Mgmt. Pension Fund, No. 12-CV-5559, 2014
WL 527898, at *1 n.1 (E.D.N.Y. Feb. 7, 2014).
The Court assumes the truth of the facts alleged, and draws all reasonable inferences in
the favor of the plaintiff. See Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009). In order to
withstand defendant’s motion, plaintiff’s complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Hayden v.
Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Although the complaint need not contain “‘detailed
factual allegations,’” simple “[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). But “[u]nless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his or her claim which could entitle
the plaintiff to relief, the court cannot grant a defendant’s motion for a judgment on the
pleadings.” Mennella, 938 F.Supp. at 131 (citing Sheppard v. Beerman, 18 F.3d 147, 150 (2d
Cir. 1994)); cf. Al-Kaysey v. L-3 Servs. Inc., No. 11-CV-6318, 2013 WL 5447686, *8 (E.D.N.Y.
Sept. 27, 2013).

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DISCUSSION
At issue is whether Ayoola’s Amended Complaint, substituting Branan for John Doe,
may be considered timely filed. The limitations period for medical malpractice claims is two and
a half years. CPLR § 214-a. Because the alleged malpractice took place on October 4 and 5,
2012, the limitations period expired on April 5, 2015. Ayoola’s original Complaint, filed on
December 23, 2013, falls within this period; however, the operative Amended Complaint, filed
July 29, 2015, does not.  For the reasons below, the Court finds the Amended Complaint relates
back to the filing of the original Complaint so that it may be considered timely filed.2  
An amended complaint, filed outside of a statute of limitations period, is considered
timely if it “relates back” to the original complaint. VKK Corp. v. Nat’l Football League, 244
F.3d 114, 128 (2d Cir. 2001); see Fed. R. Civ. P. 15(c). Pursuant to Federal Rule of Civil
Procedure 15(c)(1)(A), an amended pleading relates back to the original complaint when the law
that provides the applicable limitations period allows for relation back. In this case, the
applicable state law is CPLR § 203(b). Under New York state law, “for a claim asserted against
a new defendant to relate back to the date the claim was filed against another defendant, the
plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or
occurrence; (2) the new defendant is united in interest with the original defendant, 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 new defendant knew or
should have known that, but for a mistake by the plaintiff as to the identity of the proper parties,

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 Absurdly, Branan suggests that Ayoola’s Amended Complaint is barred by the statute of limitations because it was
allegedly filed five days outside the window set by Judge Pohorelsky – a window that opened between July 10 and
July 24, 2015. (Def.’s Mot. J. at 4.) This argument suggest that the Magistrate Judge opened a fourteen day window
for Ayoola to sue Branan more than three months after the statute of limitations expired on her claims. This
explanation blinks reality. Further, it is of no moment here given the Court’s conclusion that the Amended
Complaint relates back to the filing of the original Complaint.

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the action would have been brought against him or her as well.” Roseman v. Baranowski, 120
A.D.3d 482, 484 (2014).
The parties do not dispute that the first and third prongs of the relation back analysis are
satisfied.3 (Def.’s Mot. J. at 7; Pl.’s Opp’n at 11, 13.) Accordingly, the Court focuses its
analysis on the second prong – whether Branan is united in interest with HHC.
“In malpractice actions, the defendants are considered united in interest when one is
vicariously liable for the acts of the other.” Schiavone v. Victory Mem’l Hosp., 292 A.D.2d 365,
366 (2002) (internal citation omitted); see also Austin v. Interfaith Med. Ctr., 264 A.D.2d 702,
704 (1999). “Hospitals are vicariously liable for the negligence of an independent contractor
emergency-room physician where the patient enters the emergency room seeking treatment from
the hospital rather than a specific physician of the patient’s own choosing.” Schiavone, 292
A.D.2d at 366; see also Lorenz v. Managing Dir., St. Luke’s Hosp., No. 09-CV-8898, 2010 WL
4922267, at *11 (S.D.N.Y. Nov. 5, 2010), report and recommendation adopted, 2010 WL
4922541 (S.D.N.Y. Dec. 2, 2010) (“[U]nder New York law, hospitals are vicariously liable for
the physicians who provide care to their emergency room patients provided that a patient has not
entered the hospital in order to receive treatment from a specific physician.”).
Here, the hospital may be held vicariously liable for Branan’s negligence because Ayoola
entered the hospital on the relevant dates seeking emergency treatment rather than treatment
from Branan specifically. It is irrelevant that Branan was not an employee of HHC at the time of
treatment. See Austin, 264 A.D.2d at 704 (“The Hospital is vicariously liable for the malpractice
of Dr. Sabir, an emergency room physician, even though he was an independent contractor with

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Branan makes an argument related to the timing of his notice in relation to Rule 15(c)(1)(C). (Def.’s Reply Br.
(Doc. No. 44) at 107 (ECF Pagination).) The Court does not address this argument because it is not relevant to the
Court’s analysis of the relation back doctrine pursuant to Rule 15(c)(1)(A).

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the Hospital at the time of the alleged malpractice, and therefore, their interests are united.”
(internal citations omitted)).
Branan argues that he is not united in interest with HHC because he has a defense against
Ayoola’s EMTALA claim, which is not available to HHC. It is true that unity of interest is
destroyed when a defendant, served late, may bring a different defense than the timely served
defendant. Connell v. Hayden, 83 A.D.2d 30, 42 (1981). However, it is simply irrelevant here
that Branan has a defense against EMTALA, not available to HHC, because Ayoola does not
bring its EMTALA claims against Branan. As such, Branan is united in interest with HHC and
the Amended Complaint relates back to Ayoola’s original Complaint, filed within the limitations
period.
CONCLUSION
Accordingly, Branan’s Motion for Judgment on the Pleadings is denied. This action is
committed to the assigned Magistrate Judge for continued supervision of all pre-trial
proceedings.

SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
August 29, 2016

_ _________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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