Opinion
April 7, 1986
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Order modified, on the law, by deleting the fifth, sixth, seventh, and eighth decretal paragraphs thereof and substituting therefor a provision denying the plaintiff's cross motion. As so modified, order affirmed, insofar as appealed from, with costs to the appellant-respondent.
Although the defendant the Brooklyn Hospital (hereinafter the hospital) incorrectly described the order appealed from in its notice of appeal, this court may treat that notice as valid, and we do so here (see, CPLR 5520 [c]).
The plaintiff did not move to amend her complaint to specifically include a cause of action based on negligent hiring until September 1984, over five years after instituting her suit against the hospital, and one year after discovering the involvement of one Dr. Gudavalli in the operation performed upon the plaintiff at the hospital. During the interim, Dr. Freund, who was the hospital's chief of surgery, died. The proposed amended complaint includes a charge that the hospital negligently hired Dr. Gudavalli. The hospital's former employee, the late Dr. Freund, was in charge of hiring Dr. Gudavalli.
The plaintiff is guilty of laches because of the long delay in serving an amended complaint, coupled with the prejudice suffered by the hospital occasioned by the death of Dr. Freund (see, Weiss v. Mayflower Doughnut Corp., 1 N.Y.2d 310, 318; Stettine v County of Suffolk, 105 A.D.2d 109, 113, affd 66 N.Y.2d 354). Thus, she may not be permitted to amend her complaint (see, Bertan v Richmond Mem. Hosp. Health Center, 106 A.D.2d 362, 363). Furthermore, the plaintiff did not submit the necessary affidavits of merit or proffer an excuse for her delay in serving an amended complaint. The court, by granting leave to serve an amended complaint without the submission by the plaintiff of such affidavits, improperly exercised its discretion (see, Bertan v. Richmond Mem. Hosp. Health Center, supra, at p 363; cf. Ortiz v. Bono, 101 A.D.2d 812).
The hospital is not equitably estopped from asserting the Statute of Limitations, as any allegedly improper conduct on the part of Dr. Freund ceased prior to the expiration of the period of limitation (see, Simcuski v. Saeli, 44 N.Y.2d 442, 449-450; Demille v. Franklin Gen. Hosp., 107 A.D.2d 656, 657, affd 65 N.Y.2d 728). Lazer, J.P., Thompson, Niehoff and Kunzeman, JJ., concur.