Opinion
February 26, 1958
Martin, Clearwater Bell for defendants.
Scotto Mangano for plaintiff.
Motion by defendant, Sweeney, under subdivision 5 of rule 107 of the Rules of Civil Practice to dismiss the complaint as to him individually, upon the ground that the cause of action therein alleged did not accrue within the time limited by law for the commencement of the action.
Said defendant is one of three physicians who are named as defendants in the action (for alleged malpractice) "individually and as co-partners doing business as F. Paul Ansbro, M.D., F.A.C.A., associates in anesthesiology." Two of the defendants were served with the summons and complaint in the action within two years from the date the alleged cause of action accrued. The moving defendant was served after the expiration of two years from said date. He maintains that, as to him individually, plaintiff's claim is barred by lapse of time.
The motion is denied. Although said defendant was served after the time limited by section 50 of the Civil Practice Act, he and his copartners are so united in interest within the meaning of section 16 of the Civil Practice Act, that the commencement of the action against one of them within the limitation period was sufficient to toll the statute as against the others. ( Partnership Law, §§ 24, 26; Plumitallo v. 1407 Broadway Realty Corp., 279 App. Div. 1019; Prudential Ins. Co. v. Stone, 270 N.Y. 154; cf. Farrell v. American Beverage Corp., 203 Misc. 330.)