| Benn v Losquadro Ice Co., Inc. |
| 2009 NY Slip Op 06307 [65 AD3d 655] |
| August 25, 2009 |
| Appellate Division, Second Department |
| Avonda Benn, Respondent, v Losquadro Ice Company,Inc., Defendant and Third-Party Plaintiff-Respondent. Utica Restaurant Corp., Defendant andThird-Party Defendant-Appellant, et al., Defendant and Third-PartyDefendant. |
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Wale Mosaku, Brooklyn, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant third-party defendantUtica Restaurant Corp. appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated September 17, 2008, as denied its cross motionpursuant to CPLR 3211 (a) (2) to dismiss the amended third-party complaint insofar as assertedagainst it, pursuant to CPLR 3211 (a) (5) to dismiss the second amended complaint insofar asasserted against it, and for summary judgment dismissing the second amended complaint insofaras asserted against it.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the cross motion of Utica Restaurant Corp. which was pursuant to CPLR 3211 (a) (2)to dismiss the amended third-party complaint insofar as asserted against it and substitutingtherefor a provision granting that branch of the motion; as so modified, the order is affirmedinsofar as appealed from, with costs to the plaintiff.
The plaintiff was injured on June 20, 2003, when she slipped and fell while working at arestaurant known as Orin's Seafood Hideaway, located at 1683 Utica Avenue in Brooklyn. Shecommenced this negligence action against, among others, the defendant Losquadro IceCompany, Inc. (hereinafter Losquadro), the owner of the subject premises. Losquadrocommenced a third-party action against the defendant third-party defendant Foodsaver NewYork, Inc., also known as Orin's Seafood Hideaway (hereinafter Foodsaver). The plaintiff filedan amended complaint on April 11, 2006, adding Foodsaver as a defendant in the action. In itsanswer to the third-party complaint, Foodsaver disclosed that it had subleased a portion of thesubject premises to the appellant Utica Restaurant Corp. (hereinafter Utica). On June 9, 2006,Losquadro served the parties and Utica with an amended third-party complaint, which joinedUtica as a third-party defendant. On September 5, 2006, the plaintiff filed a second amendedcomplaint which joined Utica as a direct defendant.
It is the filing of a supplemental summons and complaint which commences an actionagainst a newly-joined defendant or a third-party defendant (see CPLR 305 [a]; Perezv Paramount Communications, 92 NY2d 749, 756 [1999]; Tricoche v Warner AmexSatellite Entertainment Co., 48 [*2]AD3d 671, 673 [2008];Matter of Williams v County of Genesee, 306 AD2d 865, 867 [2003]). It is undisputedthat Losquadro's amended third-party complaint was never filed with the court. Therefore, thatbranch of Utica's motion which was pursuant to CPLR 3211 (a) (2) to dismiss the amendedthird-party complaint insofar as asserted against it should have been granted.
Contrary to Utica's contention, however, it was not entitled to dismissal pursuant to CPLR3211 (a) (5) of the plaintiff's second amended complaint insofar as asserted against it. A claimasserted against a defendant in an amended filing may relate back to claims previously assertedagainst a codefendant for statute of limitations purposes where the two defendants are "united ininterest" (CPLR 203 [c]; see Buran v Coupal, 87 NY2d 173 [1995]; Brock vBua, 83 AD2d 61 [1981]). The deposition testimony of Orin Tucker, the owner of bothFoodsaver and Utica, demonstrated that the relationship between the two companies was suchthat Utica could be charged with notice of the institution of the action under this doctrine andwould not be prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87NY2d at 178; Brock v Bua, 83 AD2d at 69).
In addition, Utica was not entitled to summary judgment dismissing the second amendedcomplaint insofar as asserted against it. Contrary to its assertion, Utica failed to make a primafacie showing that the plaintiff was a special employee who was transferred from Foodsaver toUtica's service (see Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557 [1991];Ugijanin v 2 W. 45th St. JointVenture, 43 AD3d 911, 912 [2007]; Schramm v Cold Spring Harbor Lab., 17 AD3d 661, 662 [2005]).Accordingly, Utica failed to demonstrate that it was a special employer shielded by the plaintiff'sreceipt of workers' compensation benefits as an employee of Foodsaver (see Workers'Compensation Law § 29 [6]; Thompson v Grumman Aerospace Corp., 78 NY2d at559-560; Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d at 913; Alvarez v Cunningham Assoc., L.P.,21 AD3d 517 [2005]). Spolzino, J.P., Skelos, Dillon and Covello, JJ., concur.