## Facts

- Leo and Mildred Provosty sued for medical malpractice against “Lydia E. Hall Hospital” and several physicians affiliated with the hospital (Action No. 1).
- The complaint’s first paragraph alleged the hospital was a New York domestic corporation authorized to do business in New York.
- “Lydia E. Hall Hospital” was not a corporation or separate legal entity; it was an assumed name (trade name) used by Dr. Carl H. Neuman, who owned the proprietary hospital.
- Dr. Neuman had filed an assumed-name certificate for “Lydia E. Hall Hospital” with the Nassau County Clerk in 1974 under General Business Law § 130.
- In September 1978, the hospital served an answer that (a) specifically denied the complaint’s corporate-status allegation and (b) pleaded, as an affirmative defense, lack of personal jurisdiction over “Lydia E. Hall Hospital.”
- On July 19, 1979, at an examination before trial—about three months before the medical-malpractice limitations period expired—plaintiffs’ counsel was told that the hospital was a proprietary institution owned exclusively by Dr. Neuman and was not a corporation.
- Despite learning that Dr. Neuman was the owner and that “Lydia E. Hall Hospital” was only a trade name, plaintiffs did not timely name and serve Dr. Neuman within the limitations period in Action No. 1.
- After the limitations period expired, plaintiffs filed a second, nearly identical malpractice action (Action No. 2) naming Dr. Carl H. Neuman “doing business as” Lydia E. Hall Hospital.
- In Action No. 2, Neuman pleaded the statute of limitations as an affirmative defense.
- Neuman moved to dismiss Action No. 1 for lack of personal jurisdiction. Plaintiffs cross-moved in Action No. 2 to strike the statute-of-limitations defense, arguing equitable estoppel based on the defense’s conduct in Action No. 1.
- Supreme Court, Nassau County (Becker, J.) denied dismissal of Action No. 1, granted plaintiffs’ request to strike the limitations defense in Action No. 2 and estop its assertion, and directed defense counsel to notify counsel in other cases that “Syosset Hospital” and “Lydia E. Hall Hospital” were trade names used by Dr. Neuman.
- The hospital appealed from those portions of the order.

## Issues

1. Whether Action No. 1 should be dismissed for lack of personal jurisdiction where the named “hospital” was only a trade name and the sole owner, Dr. Neuman, was not served.
2. Whether Dr. Neuman could be equitably estopped from asserting a statute-of-limitations defense in Action No. 2 when plaintiffs learned before the limitations period expired that he was the owner but did not timely sue and serve him.

## Decision

- The Appellate Division, Second Department reversed the order insofar as appealed from, on the law, without costs or disbursements.
- The court granted the motion to dismiss the complaint in Action No. 1 for lack of personal jurisdiction.
- The court denied plaintiffs’ cross-motion, inter alia, to strike the statute-of-limitations defense in Action No. 2.

## Legal Principles

- A trade name (assumed name) is not, by itself, a separate suable legal entity; a plaintiff must sue and serve the person or entity that uses the assumed name.
- When the real party in interest (here, the sole owner) is not served with process, the court does not obtain personal jurisdiction over that party merely because process was served on the trade name.
- A defendant preserves a personal-jurisdiction objection by pleading it as an affirmative defense and by denying allegations that would otherwise support jurisdiction over a distinct legal entity.
- Equitable estoppel against a statute-of-limitations defense requires conduct by the defendant that caused the plaintiff’s late commencement (or failure to proceed timely) against the proper party.
- Equitable estoppel is not available when the plaintiff has actual notice, with time remaining before the limitations period expires, of the correct defendant’s identity and the facts needed to proceed properly, yet fails to act within the statutory period.

## Conclusion

The Appellate Division held that “Lydia E. Hall Hospital” was only Dr. Neuman’s assumed name, so service on the trade name did not confer personal jurisdiction over Neuman and Action No. 1 had to be dismissed; because plaintiffs learned before the limitations deadline that Neuman was the sole owner but did not timely sue and serve him, equitable estoppel did not bar Neuman’s statute-of-limitations defense in Action No. 2.


Provosty v. Lydia E. Hall Hospital, 91 A.D.2d 658, 457 N.Y.S.2d 106 (1982)