This is an appeal by defendant Dr. Ole Thor Jonassen from so much of an order of the Supreme Court, Nassau County, as denied his motion for summary judgment upon the grounds of lack of in personam jurisdiction and the Statute of Limitations and an appeal by Dr. Charles W. Hayden, M.D., and Dr. Ole Thor Jonassen, M.D., P.C., an unnamed and unserved professional service corporation through which the named defendants practiced medicine, from so much of said order as found it subject to in personam jurisdiction and granted plaintiffs leave to amend their complaint to state a cause of action against it.
The defendants Charles W. Hayden and Ole Thor Jonassen are medical doctors engaged in the practice of surgery.
This malpractice action was commenced against the two doctors by a former patient named Robert Connell to recover damages for personal injuries and by his wife Dorothy to recover damages for loss of consortium and services. Jurisdiction over the person of Dr. Hayden was obtained by personally delivering a copy of the summons and complaint to him on September 20, 1977. On the same day, plaintiffs attempted to effectuate service upon Dr. Jonassen by delivering his copy of the summons and complaint to Dr. Hayden and by mailing an additional copy thereof to Dr. Jonassen's place of business. The summons and complaint named only the two doctors as individual defendants and did not allege that they practiced either as a partnership or as a professional service corporation.
Dr. Jonassen served an answer which denied the material allegations of the complaint and asserted the defense of lack of personal jurisdiction and the affirmative defense of the Statute of Limitations. Plaintiffs' bill of particulars alleged that the acts of malpractice by Dr. Jonassen were committed between September 14, 1972 and October 20, 1972 at the office of the defendants and at the Community Hospital at Glen Cove.
On or about February 22, 1980 Dr. Jonassen made a motion which he denominated as one to dismiss plaintiffs' complaint pursuant to CPLR 3211 (subd [a], pars 5, 8) upon the grounds of lack of personal jurisdiction and the bar of the Statute of Limitations. The motion was made after joinder of issue and for that reason it was actually one for summary judgment pursuant to CPLR 3212 on grounds enumerated in CPLR 3211 (subd [a]) (see CPLR 3212, subd [a]; CPLR 3211, subd [e]). Since the two defenses were asserted in defendant Jonassen's answer and since there is no indication that he made a prior motion to dismiss under CPLR 3211 without raising those defenses, they were not waived and were properly presented on that defendant's motion for summary judgment (CPLR 3211, subd [e]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C3212:20, p 439;
In support of Dr. Jonassen's motion for summary judgment it was argued that mailing the summons and complaint to his place of business rather than his residence rendered the attempted service ineffective to obtain jurisdiction over his person and that since the acts of malpractice were alleged by plaintiffs to have occurred in 1972 and the action was not commenced until 1977, it was barred by the Statute of Limitations. In opposition to the motion, plaintiffs' attorney argued that there had been sufficient compliance with CPLR 308 to obtain personal jurisdiction and that since Dr. Jonassen and Dr. Hayden practiced medicine as a "partnership", service upon Hayden conferred jurisdiction upon the partnership. It was also claimed that the action was commenced within the applicable limitation of time for malpractice actions after the alleged "partnership" ceased treating plaintiff Robert Connell. In reply, the attorney for defendant Dr. Jonassen argued, inter alia, that the defendants practiced in the form of a professional service corporation, not a partnership, and that in any event, plaintiffs had not obtained jurisdiction over a partnership or corporation by serving only Dr. Hayden because the summons and complaint did not separately name either such entity.
Special Term denied the motion for summary judgment holding, inter alia, (1) that since no party had submitted evidence as to the last date of treatment, it could not determine the Statute of Limitations issue, (2) that since the named individual defendants practiced as a professional service corporation, service upon Dr. Hayden conferred jurisdiction over the corporation pursuant to CPLR 311, and (3) that since Dr. Hayden and Dr. Jonassen were united in interest, the Statute of Limitations was "tolled" by personal delivery of the summons to Hayden (citing CPLR 203, subd [b]) and therefore the plaintiffs could "now effectuate personal service on DR. JONASSEN." The court went on to grant plaintiffs leave to serve an amended complaint "to reflect that these two doctors practiced medicine as a professional corporation". Dr. Jonassen and the corporation have appealed.
IN PERSONAM JURISDICTION
We first address the question of personal jurisdiction. Plaintiffs had the burden of proof on that issue (Jacobs v Zurich Ins. Co., 53 A.D.2d 524, 525; Saratoga Harness Racing Assn. v Moss, 26 A.D.2d 486, 490, affd 20 N.Y.2d 733). They claim that they obtained jurisdiction over Dr. Jonassen by delivering a copy of the summons and complaint to Dr. Hayden, a person of suitable age and discretion, at Dr. Jonassen's business address and by mailing a copy of the process to that same business address rather than to Dr. Jonassen's last known residence as required by CPLR 308 (subd 2). We have repeatedly held to the contrary, that subdivision 2 means what it says and that mailing the copy to the named defendant's office will not satisfy the statute (Chalk v Catholic Med. Center of Brooklyn & Queens, 58 A.D.2d 822; Glikman v Horowitz, 66 A.D.2d 814; Frankel v French & Polyclinic Med. School & Health Center, 70 A.D.2d 948; cf. Pober v Boulevard Hosp., 72 A.D.2d 600; Feinstein v Bergner, 48 N.Y.2d 234, 239). Since delivery and mailing to the defendant's place of business was not authorized by subdivision 2, it was incumbent upon plaintiffs to obtain a court order, in advance, authorizing utilization of the method of service actually adopted here upon a showing that service under CPLR 308 (subd 1, 2 or 4) was impracticable (CPLR 308, subd 5; Chalk v Catholic Med. Center of Brooklyn & Queens, supra, p 824). Accordingly, service upon Dr. Jonassen was defective, his defense of lack of
We also note in this regard that Special Term erred in denying Dr. Jonassen's motion for summary judgment dismissing plaintiffs' complaint for lack of in personam jurisdiction upon the ground that since he was "united in interest" with Dr. Hayden under CPLR 203 (subd [b]), service upon the latter "tolled" the Statute of Limitations and plaintiffs could now effectuate service upon Jonassen. As we said in the case of Morrison v Foster (80 A.D.2d 887, 888, supra): "[T]he basic effect of [that] provision is that timely service upon any one of two or more defendants who are `united in interest' as to a claim, permanently deprives all codefendants of the defense of the Statute of Limitations (Zeitler v City of Rochester, 32 A.D.2d 728; 1 Weinstein-Korn-Miller, NY Civ Prac, par 203.05). This does not, however, mean that the court has jurisdiction over the unserved defendant. To acquire personal jurisdiction over the codefendant, the plaintiff still must properly serve a summons upon him." Thus, even assuming for purposes of argument the correctness of Special Term's conclusion that Doctors Hayden and Jonassen were united in interest, the failure of plaintiffs to properly effectuate service upon the latter mandated that his motion to dismiss for lack of jurisdiction be granted.
The next jurisdictional problem in this case concerns the professional service corporation through which the named defendant doctors practiced medicine. Special Term held that service upon Dr. Hayden was good against the corporation, citing CPLR 311, and permitted the plaintiffs to amend their complaint to plead a cause of action against it. The corporation was not named in the summons and complaint and the named defendants were sued in their individual capacities only, without any allegation in the plaintiffs' pleading that they practiced together as either a partnership or corporation.
CPLR 304 states in relevant part that "[a]n action is commenced and jurisdiction acquired by service of a summons." The purpose of the summons is to notify the defendant
As stated above, the summons and complaint served upon Dr. Hayden did not aver that the individual named defendants were in any way associated with one another, much less that plaintiffs intended to reach the professional entity through which those defendants did, in fact, conduct their practice. It was in plaintiffs' papers in opposition to Dr. Jonassen's motion for summary judgment that they first indicated their desire to make the professional entity, whether a partnership or a professional service corporation, a party to this action.
As long ago as 1903, in the case of Licausi v Ashworth (78 App Div 486), this court held that a summons which named and which was served only upon an individual could not be amended so as to substitute an unnamed corporation through which the named party conducted his business (see, also, Jet Age Knitwear Mach. Corp. v Philip, 22 A.D.2d 674; Nutting v November, 232 App Div 848; Meadow Brook Nat. Bank of Nassau County v Pucillo, 23 Misc.2d 228; cf. Gray v Vought & Co., 216 App Div 230, app dsmd 243 N.Y. 585). In order to justify the amendment of a summons in such circumstances, some apparent misdescription
The summons in this case was issued only against two individual defendants without reflecting any intent to make their professional service corporation a party. We cannot conclude, as did Special Term, that commencement of this action against the individual doctors by service upon Dr. Hayden can be transmogrified into the commencement of a suit against the corporation (but see contra, Richardson v Millard, 58 Misc.2d 502, app dsmd 33 A.D.2d 820, mot to amend notice of app & for rearg granted & upon rearg order affd 33 A.D.2d 944). Since the summons served on Dr. Hayden was not issued against the corporation our courts lack jurisdiction over it. Amendment of the original summons to name the corporation would in effect add a new party, and not merely correct the name of a party that the plaintiffs originally intended to join. Such an amendment of the original summons is unauthorized under CPLR 305 (subd [c]).
The mechanism for effectuating the desire of plaintiffs to obtain jurisdiction over the corporation as expressed in their opposition papers at Special Term and in their brief on this appeal is contained in CPLR 1003 and CPLR 305 (subd [a]) (see McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR, C1003:1, p 450; C305:2, p 175; and 1975 Supplementary Practice Commentary to CPLR, C305:2, p 98, 1980-1981 Pocket Part; see, also, 2 Weinstein-Korn-Miller, NY Civ Prac, pars 1003.06-1003.08). A new party can only be added with prior court approval by serving it with a supplemental summons. Plaintiffs are hereby granted permission to add Charles W. Hayden, M.D. and Ole Thor Jonassen, M.D., P.C., as a party defendant by the service upon it of a supplemental summons. Pursuant to the order appealed from, plaintiffs may then also serve an amended complaint (CPLR 3025, subd [b]).
STATUTE OF LIMITATIONS
The remaining issue raised by the parties concerns the Statute of Limitations. In view of our holding that neither Dr. Jonassen nor the corporation are at present subject to in personam jurisdiction because they have not been properly served with process, it is not now strictly necessary to reach the issue. However, the decision of Special Term and the briefs on appeal contain such a potpourri of arguments concerning the Statute of Limitations and an intermingling with them of issues and rules relating solely to the question of jurisdiction that we deem it advisable to address the implications of the statute upon this case so as to provide some guidance in the event that Dr. Jonassen and the corporation are served and interpose that affirmative defense.
Plaintiffs' bill of particulars asserts that the acts or omissions constituting the malpractice complained of occurred between September 14, 1972 and October 20, 1972. Accordingly, the applicable Statute of Limitations is the three-year period set forth in former subdivision 6 of CPLR 214 and not the two and one-half year period of CPLR 214-a, which became effective on July 1, 1975 (see L 1975, ch 109, § 37; cf. Szajna v Rand, 75 A.D.2d 617, 618). Implementation of that limitation of time will require the determination of (1) the date upon which plaintiffs' cause of action accrued so as to commence the three-year period running and (2) the date upon which plaintiffs' claim was interposed.
It is the general rule that a cause of action for malpractice accrues on the date of the act or omission complained of (Davis v City of New York, 38 N.Y.2d 257, 259; 1 Weinstein-Korn-Miller, NY Civ Prac, par 214-a.03) or upon the termination of a series of wrongful acts or omissions (Nervick v Fine, 195 Misc. 464, affd 275 App Div 1043, mot for lv to app den 276 App Div 775). However, an exception to the general rule applies where the malpractice was committed as part of a continuous course of treatment rendered to the plaintiff by the defendant for the same or related illnesses or injuries. In such event the cause of action accrues at the
Dr. Jonassen argued at Special Term that for the purpose of determining the date upon which plaintiffs' cause of action accrued under the continuous treatment exception, it is the last date of treatment he rendered and not the last date of treatment by Dr. Hayden which governs, despite the fact that they were both employees of the same professional service corporation. That argument was not determined by Special Term and we decline to pass upon it now.
Claim Interposition — The "United in Interest" Rule
The next point concerns whether Dr. Jonassen and the corporation are "co-defendant[s] united in interest" with Dr. Hayden so that personal service of the summons and complaint upon the latter constituted interposition of plaintiffs' claim against them as well (CPLR 203, subd [b]).
One leading treatise states that the term united in interest "has not proven easy to apply" (1 Weinstein-Korn-Miller, NY Civ Prac, par 203.06, p 2-68). Professor Siegel says that the "test of what interests are `united' under this provision is pragmatic" (Siegel, New York Practice, § 45). The classic attempt at formulating a criterion for assessing unity of interest is contained in Prudential Ins. Co. of Amer. v Stone (270 N.Y. 154, 159) in which the Court of Appeals stated that "[i]f the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other then they are `otherwise united in interest.'" While this formulation says much, it also leaves much unsaid.
A proper analysis of the "united in interest" language of CPLR 203 requires a basic understanding of the policies upon which Statutes of Limitation are based. These policies are briefly reviewed in Note: Federal Rule of Civil Procedure 15 (c): Relation Back of Amendments (57 Minn L Rev 83, 84-85), as follows: "First, the primary purpose of the statute is to compel the exercise of a right of action within a reasonable time so that a defendant will have a fair opportunity to prepare an adequate defense. Otherwise, the belated institution of an action might prejudice defendant's preparation of evidence. Such prejudice would commonly result, for example, where critical evidence is lost or where the facts have been obscured by the passage of time or faulty memories. The death or removal from the jurisdiction of witnesses is a further problem. Second, the statute relieves the defendant from the otherwise endless psychological fear of litigation based upon events in the distant past. Third, it frees the judicial system from stale claims which make resolution of fact issues both difficult
It thus appears that the primary purpose of Statutes of Limitation is to relieve defendants of the necessity of investigating and preparing a defense where the action is commenced against them after the expiration of the statutory period because the law presumes that by that time "evidence has been lost, memories have faded, and witnesses have disappeared" (Telegraphers v Railway Express Agency, 321 U.S. 342, 348-349). In such a case the statute is an absolute bar to plaintiff's action. The united in interest language of CPLR 203 creates an exception to the foregoing rule. Where a defendant is served late, the plaintiff's claim will nevertheless be deemed interposed against him as of the earlier date upon which a codefendant united in interest with him was timely served and the Statute of Limitations will not constitute a bar to the action. The rationale behind this exception is that where the two defendants are united in interest their defenses will be the same and they will either stand or fall together with respect to plaintiff's claim. Timely service upon one of two such defendants gives sufficient notice to enable him to investigate all the defenses which are available to both defendants within the period of limitations. From this the rule has evolved that where one defendant "may" have a
The history of what is now CPLR 203 (subd [b]) throws some light upon the question of when persons are united in interest. In 1851 the Legislature passed certain amendments to the then recently enacted Code of Procedure of 1848, the so-called Field Code, among which was the addition of section 99 which stated in relevant part that: "§ 99 An action is commenced as to each defendant when the summons is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest, with him" (L 1851, ch 479; emphasis added).
This language passed virtually unchanged into section 398 of the Code of Civil Procedure of 1876 and from there into section 16 of the Civil Practice Act of 1920. In the second annual report of the Advisory Committee on Practice and Procedure which developed the CPLR, it was recommended that the term "joint contractor" be dropped as an unnecessary example of a situation in which codefendants are united in interest (Second Preliminary Report of Advisory Committee on Practice and Procedure, 1958, p 49). The point of this historical discussion is that the initial draftsmen of the provision in question focused upon a jural relationship existing between two defendants, namely the status of being "joint contractors", and said that as to defendants having that or a like jural relationship, service upon either would be deemed commencement of the action for Statute of Limitations purposes.
We conclude from the foregoing that the question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim
Of the many reported cases in which the question of unity of interest has been raised since the rule was first enacted in 1851, we have found only one in which determination of that question was dependent upon a question of fact and was therefore deferred until trial. That case was Horne v Loughman (264 App Div 124), in which the receiver of a bank held certain judgments against the plaintiffs. As collateral security for the debt owed by plaintiffs to the bank, plaintiffs gave the receiver a note by one Thomas and payable to plaintiff Donald Horne. At the time of its delivery to the bank the note was due. Horne indorsed it and authorized the receiver of the bank to collect it. Several years thereafter the plaintiffs sued the receiver for a declaration that the bank's judgments against them had been discharged by his negligent conduct in failing to reduce the note to judgment before the Statute of Limitations ran against its maker Thomas. The theory of their case was that a pledgee of negotiable paper is bound to use reasonable diligence in the collection of it and if he neglects after maturity to enforce payment, he is liable to the pledgor for any loss which might have been prevented by proper diligence and proceedings to collect it. The defendant receiver moved to dismiss claiming that he had commenced an action on the note by serving a summons upon Horne which named both Horne and Thomas as defendants. Defendant contended that when Horne indorsed the note he became jointly liable with Thomas and that under section 16 of the Civil Practice Act, service upon him must be deemed the commencement of an action against Thomas for Statute of Limitations purposes. Special Term granted
The Horne case can be explained and reconciled with our view that unity of interest is a question of law to be determined from an examination of the nature of plaintiff's claim and the jural relationship existing between the parties because in Horne the jural relationship itself was the subject of a disputed issue of fact. Horne claimed that his indorsement was not intended as a guarantee of payment of the note and that it was merely intended to enable the receiver to collect the note from Thomas. If that was so he was not liable on the indorsement and was not united in interest with Thomas. In the instant case there is no dispute as to the jural relationship existing between the parties defendant. The two individual doctors are coemployees of the professional service corporation, who have been charged with the tort of medical malpractice.
With respect to persons whose only relationship is that of joint tort-feasors, the courts have held that they are not united in interest. The reason for this rule is that where the proximate cause of an injury is the concurring wrongful acts or omissions of two or more persons acting independently, each is liable to plaintiff for the full amount of his damage, but the liability is only because of his own negligence
It follows from the foregoing that in an action to recover for the torts of negligence or malpractice the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other. Professor Prosser explained the term "vicarious liability" as follows:
Liability of a Professional Service Corporation for the Malpractice of its Employees
The rule is clear that partners are "united in interest" because they are each by statute fully, personally, and vicariously liable for the torts of their copartners committed within the scope of the partnership business (Partnership Law, §§ 24, 26; Stuyvesant Ins. Co. v Matusow, 26 Misc.2d 860; Bennett v Watson, 21 App Div 409, 412). Hence, in Pandolfo v Ansbro (10 Misc.2d 51) it was held that timely service upon one of three physicians who were partners constituted a timely commencement of the action against the other two doctors who were served late. Here, however, two doctors who were once partners changed the nature of their relationship by forming a professional service corporation and becoming its employees.
It has been held that employers (masters) and their employees (servants) are united in interest (Hatch v Cherry-Burrell Corp., 274 App Div 234, 241). In Diver v Jewish Hosp. of Brooklyn (18 Misc.2d 231) the plaintiff in a malpractice action timely served a hospital and served an individual doctor after the Statute of Limitations had run. Since the doctor was an employee of the hospital, and the latter could only be held vicariously liable under the doctrine of respondeat superior for the negligence of the former, the court held that they were united in interest.
Business corporations are liable under the doctrine of respondeat superior for the torts of their employees committed within the scope of the corporate business (19 Am Jur 2d, Corporations, § 1427) and, as with any other corporation, professional service corporations are similarly vicariously liable for the torts of their servants (Szajna v Rand, 75 A.D.2d 617, 618, supra).
Another facet to the question of unity of interest in the master and servant situation is presented in Shachter v Deepdale Gen. Hosp. (NYLJ, May 28, 1979, p 7, col 2) in which the plaintiff sued a hospital and two doctors who he claimed were its employees. Special Term, Bronx County, held that Dr. A and the hospital were not united in interest, reasoning that the hospital might be held liable for the negligence of Dr. B even if Dr. A was exonerated and, therefore, that Dr. A and the hospital would not stand or fall together. We disagree with that line of reasoning in that, as between themselves, Dr. A and the employer
Accordingly, we hold that the professional service corporation is united in interest with its timely served employee Hayden.
Liability of an Employee of a Professional Service Corporation for the Malpractice of a Coemployee
The next question for resolution is whether the two individual doctors can be said to be united in interest so that plaintiff's claim against Dr. Jonassen will be deemed interposed as of the earlier date upon which he timely served Dr. Hayden. As stated above, it appears that where as here, the action is one to recover for tort, persons who are charged with concurrent negligence producing plaintiff's injuries will not be held to be "united in interest" absent some relationship between them giving rise to vicarious liability for the acts of the other. The modern justification for the imposition of vicarious liability is a rule of policy deliberately allocating a risk to other persons in a given relationship (Prosser, Torts [4th ed], § 69, p 459; 2 Harper and James, Law of Torts, § 26.5). The nature of the relationship between the parties is the thing upon which vicarious liability depends. It exists in the relationships of copartners, master and servant, and joint venturers, but here Doctors Hayden and Jonassen are coshareholders, officers and employees of a professional service corporation. We must therefore ascertain whether the existence of that relationship gives rise to vicarious liability either at common law or under section 1505 of the Business Corporation Law.
At common law in this State a person injured by the negligence of another was required to seek his remedy against the person whose actual negligence caused the injury and that person alone was liable (King v New York Cent. & Hudson Riv. R. R. Co., 66 N.Y. 181; Potts v Pardee, 220 N.Y. 431, 435; Strickland v State of New York, 13 Misc.2d 425, 429). The creation of vicarious liability in situations of master and servant or copartners constitutes an
Claims of negligence against coemployees must be based upon allegations of the actual fault of both, and can arise in two circumstances, namely (1) where one is charged with negligent supervision of the other or (2) where neither is a supervisor but both combined to cause plaintiff's injury.
The doctrine of respondeat superior does not apply to impose vicarious liability upon supervisors (see Yorston v Pennell, 397 Pa. 28, 39, 85 ALR2d 872, 880). The employer of both is liable under respondeat superior, but the supervisor is not because he lacks the right to select, control, and discharge the employee which is essential to the imposition of vicarious liability under that doctrine (57 CJS, Master and Servant, § 563). This does not mean that a supervisor may not be liable for the injuries caused by the conduct of
The Reporter's Notes to this section state in relevant part: "The cases are unanimous in holding that a servant or other agent is not liable for the derelictions of fellow workers or other agents of the same principal. In the absence of wrongful directions or wrongful control or some other element involving wrongful conduct, the doctrine of respondeat superior does not apply to agents who are not masters" (Restatement, Agency 2d, Appendix, p 602).
The grounds for holding a supervisory employee liable for the conduct of those under his supervision are stated in sections 344, 351 and 356 of the Restatement of Agency, Second, as follows:
In each of these situations the defense of the supervisor and supervisee could be different. The supervisor could argue that he did not intentionally direct the act, or if he did, could not foresee the risk of harm therefrom, or that he was not authorized by the employer to control the acts of the other. In such circumstances the coemployees would thus not be united in interest.
There is another instance in which coemployees of a professional service corporation could be jointly liable without one possessing the authority to exercise control over the other. Here the coemployee doctors are charged with negligence in their joint diagnosis and treatment of the plaintiff. The liability of doctors who jointly diagnosed and treated the plaintiff is discussed in Graddy v New York Med. Coll. (19 A.D.2d 426, 429) in which Judge BERGAN, writing for the Appellate Division, First Department, said in dicta:
In each of the cases cited by the court in Graddy (supra) the defendant doctor held liable was sufficiently involved in the joint decisions regarding diagnosis and treatment that they could be regarded as his negligent acts. In such a case the physician is answerable for his own acts as well as the wrongful acts and omissions of the other doctor which he observes and allows to continue without objection or which in the exercise of diligence he should have observed (61 Am Jur 2d, Physicians, Surgeons, and Other Healers, § 166). Beyond this his liability does not extend (Morey v Thybo, 199 F 760, 762; cf. Scher v Kronman, 70 A.D.2d 354, 356, supra). Hence such a doctor is fully liable for the plaintiff's injuries as a joint tort-feasor even though his
The Missouri rule is apparently founded upon the doctrine of vicarious liability in cases involving joint enterprise which was explained by Professor Prosser as follows:
In this State, as in others, the joint enterprise doctrine has had its greatest use as a defense in automobile negligence cases (8 NY Jur 2d, Automobiles and Other Vehicles, § 566; Weintraub, The Joint Enterprise Doctrine in Automobile Law, 16 Cornell L Q 320; see, also, Schron v Staten Island Elec. R. R. Co., 16 App Div 111). It has generally been held, however, that the fact that two persons are fellow servants of a common master and are both acting in the course of their master's employment and in furtherance of his business does not make them participants in a joint enterprise (see Restatement, Torts 2d, § 491, Comment f; Weintraub, op. cit., p 328, n 35; McCormack v Nassau Elec. R. R. Co., 16 App Div 24, 26; Ann., 8 LRA [NS] 597, 632-635). Although some cases have imposed vicarious liability upon one employee for the negligence of a coemployee where both had an equal right to control the instrumentality which caused the plaintiff's injury (see Crescent Motor Co. v Stone, 211 Ala 516; cf. Hobson v New York Condensed Milk Co., 25 App Div 111), the correct rule was stated by this court in McCormack v Nassau Elec. R. R. Co. (18 App Div 333, 334), upon a motion for reargument of an order determining an appeal, as follows:
In other words the McCormack case holds that so long as the acts of the coemployees were in the course of the employer's business there will be no vicarious liability, but if the acts in question were committed outside of the business of the master in the private business of the two employees then the law will find a joint enterprise.
The joint enterprise doctrine has been severely criticized (Prosser, Torts [4th ed], § 72, p 481; 2 Harper and James, Law of Torts, § 26.14). Generally liability for negligence should rest only upon a finding of fault unless there is some pressing reason to impose the risk upon some person better able to bear any loss. In any event, the doctrine is based upon analogy to the liability prevailing in cases of partnership, but as discussed infra, the Legislature in enacting provisions for the creation of professional corporations did not choose to impose broad vicarious liability upon professionals who so incorporate. To conclude that the defendant doctors who jointly diagnosed and treated the plaintiff could be vicariously liable for the negligence of their coemployees
Thus, the common law does not impose vicarious liability upon coemployees even where one is a supervisor, and in this State we have not adopted a rule of vicarious liability in cases where two or more persons are engaged in common efforts other than that existing in partnership or joint venture situations. Neither does the fact that Drs. Hayden and Jonassen were stockholders and officers of the corporation give rise to any vicarious liability. In the absence of constitutional, statutory or charter provisions to the contrary, a stockholder is not merely by reason of his stock interest, liable at common law for any of the obligations of a corporation, whatever their character and in whatever manner incurred (Freeland v McCullough, 1 Denio 414, 423, overruled on other grounds sub nom. Corning v McCullough, 1 N.Y. 47). However, a stockholder is liable for the torts of a corporation in which he was a participant (Chess Enterprises v Beldon Assoc., 1 A.D.2d 840). A director, officer or agent is not liable for torts of the corporation or of other officers or agents merely because of his office and he is liable only for torts in which he participated or which he authorized or directed (19 CJS, Corporations, § 845; Haefeli v Woodrich Eng. Co., 255 N.Y. 442; Howell Mfg. Corp. v Leiblein, 32 Misc.2d 50, 51).
The remaining question is whether any changes in the foregoing common-law rules were effected by section 1505 of the Business Corporation Law, which states in relevant part:
The purpose of subdivision (a) of section 1505 was to clearly indicate that, by incorporating, a professional could
Accordingly, physicians who are coemployees of a professional service corporation and who are charged with malpractice are not "united in interest" for the purpose of CPLR 203 because one cannot be charged with vicarious liability for the acts of the other. In order to recover against both, plaintiff must prove that the fault of each of such defendants combined to cause his injuries. Where such an allegation is made the defendants are joint tort-feasors. As such their defenses could be antagonistic to one another and, therefore, they will not necessarily stand or fail together.
It is our view that the due process considerations underlying the acquisition of jurisdiction over a party can only be vindicated in this case by requiring plaintiffs to serve a supplemental summons upon the corporation thus giving clear notice that plaintiffs intend to seek a judgment against it. Such notice was not given by the summons served upon Dr. Hayden which failed to indicate that plaintiffs sought a judgment against the entity through which the named individual defendants practiced medicine. A slightly different policy consideration underlies the Statute of Limitations, namely a requirement that a defendant
Accordingly, the order appealed from should be reversed and defendant Jonassen's motion for summary judgment dismissing plaintiffs' action against him for lack of personal jurisdiction should be granted, with $50 costs and disbursements. On this court's own motion plaintiffs are granted leave to add Charles W. Hayden, M.D. and Ole Thor Jonassen, M.D., P.C. as a party defendant by the service upon it of a supplemental summons and amended complaint.
Order of the Supreme Court, Nassau County, dated June 16, 1980, reversed, on the law, with $50 costs and disbursements, Ole Thor Jonassen's motion for summary judgment dismissing the action against him is granted and on the court's own motion plaintiffs are granted leave to add Charles W. Hayden, M.D. and Ole Thor Jonassen, M.D., P.C., as a party defendant by service upon it of a supplemental summons and amended complaint.