Category: CPLR § 214-a

In order for a claim asserted against a new defendant to relate back
to the date a claim was asserted against another defendant, the
plaintiff must establish that (1) both claims arose out of the same
conduct, transaction, or occurrence, (2) the new party 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 and will not be prejudiced in maintaining his or her defense on
the merits by virtue of the delayed, and otherwise stale, assertion of
those claims against him or her, and (3) the new 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 timely commenced
against him or her as well (see Buran v Coupal, 87 NY2d 173, 178; Schiavone v Victory Mem. Hosp., 292 AD2d 365, 365-366; Austin v Interfaith Med. Ctr., 264
AD2d at 703). The "linchpin" of the relation-back doctrine is whether
the new defendant had notice within the applicable limitations period (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444).

Here, the plaintiffs failed to present evidence sufficient to
satisfy the third prong of the relation-back doctrine test. There is no
evidence in the record that Cohen had notice of the pending action
before being subpoenaed to give a deposition as a nonparty witness,
approximately seven years after he allegedly committed the malpractice (see Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42
AD3d at 444). Cohen could have reasonably concluded that the
plaintiffs' failure to sue him within the applicable limitations period
meant that there they had no intent to sue him, and thus, that the
matter had been laid to rest (see Buran v [*3]Coupal, 87 NY2d at 181; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444; see also Spaulding v Mount Vernon Hosp., 283 AD2d 634, 634-635).