| Tyz v Integrity Real Estate & Dev., Inc. |
| 2007 NY Slip Op 06864 [43 AD3d 1038] |
| September 18, 2007 |
| Appellate Division, Second Department |
| Matthew Tyz, Respondent, v Integrity Real Estate andDevelopment, Inc., et al., Defendants and Third-Party Plaintiffs-Respondents. IntegrityConstruction and Consulting Services, Inc., Defendant and Third-Party Defendant andFourth-Party Plaintiff-Appellant, et al., Fourth-Party Defendant. |
—[*1] Scott Baron & Associates, P.C., Howard Beach, N.Y. (Andrea R. Palmer of counsel), forplaintiff-respondent. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory Cascino of counsel), for defendants third-party plaintiffs-respondents.
In an action to recover damages for personal injuries, the defendant third-party defendantfourth-party plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Queens County (LeVine, J.), dated September 27, 2005, as denied that branch of its crossmotion which was for summary judgment dismissing the third-party complaint and granted thatbranch of the plaintiff's cross motion which was for leave to amend the complaint to name it as adefendant.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs to therespondents appearing separately and filing separate briefs.
The Supreme Court properly denied that branch of the appellant's cross motion which [*2]was for summary judgment dismissing the third-party complaint. Atriable issue of fact exists as to whether the plaintiff was an employee of the appellant or anindependent contractor (see Greene v Osterhoudt, 251 AD2d 786, 787-788 [1998]).
Further, the court properly granted that branch of the plaintiff's cross motion which was forleave to amend the complaint to name the appellant as a defendant. While the three-year statuteof limitations to set forth a cause of action alleging negligence (see CPLR 214) expiredprior to the plaintiff's cross motion, the plaintiff demonstrated the applicability of therelation-back doctrine (see generally Buran v Coupal, 87 NY2d 173 [1995]). Contrary tothe appellant's contention, the plaintiff was not obligated to demonstrate that the appellant andthe defendants third-party plaintiffs were united in interest since the record demonstrates that theappellant had actual notice of the plaintiff's potential claim and was already a third-partydefendant in the action (see Duffy v Horton Mem. Hosp., 66 NY2d 473, 477-478[1985]). Mastro, J.P., Covello, McCarthy and Dickerson, JJ., concur.