| Arsell v Mass One LLC |
| 2010 NY Slip Op 03855 [73 AD3d 668] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Elaine Arsell, Respondent, v Mass One LLC,Defendant/Third-Party Plaintiff. Win-Pro Enterprise, Inc., Third-Party Defendant-Appellant, etal., Third-Party Defendant. |
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In an action to recover damages for personal injuries, the third-party defendant Win-ProEnterprise, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court,Nassau County (Galasso, J.), entered September 8, 2008, as granted the plaintiff's cross motionpursuant to CPLR 3025 for leave to amend the complaint to add it as a defendant in the mainaction, and directed it to serve an answer.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiff's cross motion for leave to amend the complaint to add the third-party defendantWin-Pro Enterprise, Inc., as a defendant in the main action is denied.
The plaintiff cross-moved for leave to amend her complaint to add the third-party defendantWin-Pro Enterprise, Inc. (hereinafter Win-Pro), a snow removal contractor, as a defendant in thispersonal injury action which she commenced against the property owner, and which arose fromthe plaintiff's alleged slip and fall on snow and ice. Since the motion was made several monthsafter the statute of limitations for the personal injury action had expired, the plaintiff wasrequired to rely upon the relation-back doctrine to demonstrate that the claim against Win-Proshould relate back to the date that the claim was timely interposed against the property owner.
"In order for a claim asserted against a new defendant to relate back to the date the claimwas filed against another defendant, the plaintiff must establish that (1) both claims arose out of[the] same conduct, transaction, or occurrence, (2) the new defendant is united in interest withthe original defendant, and by reason of that relationship can be charged with notice of theinstitution of the action such that he will not be prejudiced in maintaining his defense on themerits, and (3) the new defendant knew or should have known that, but for a mistake by theplaintiff as to the identity of the proper parties, the action would have been brought against himas well" (Boodoo v Albee DentalCare, 67 AD3d 717, 718 [2009]; see Buran v Coupal, 87 NY2d 173, 178[1995]; Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80NY2d 219, 226 [1992]; Brock v Bua, 83 AD2d 61, 69 [1981]). Contrary to thedetermination of the Supreme Court, the plaintiff failed to demonstrate that Win-Pro and thedefendant property owner are united in interest, since they have manifestly different defenses[*2]to the plaintiff's claims and would not stand or fall together(see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d at226; Xavier v RY Mgt. Co., Inc.,45 AD3d 677, 679 [2007]; Sowa vS.J.N.H. Realty Corp., 21 AD3d 893, 895 [2005]; Stulberger v Bellucci, 251AD2d 569, 570 [1998]; Connell v Hayden, 83 AD2d 30, 41-42 [1981]; Yansak v Blackburn Group, Inc., 8Misc 3d 460, 475 [2004]). Similarly, given the plaintiff's knowledge of the existence ofWin-Pro and its involvement in the case long before the applicable limitations period hadexpired, and her failure to join Win-Pro as a defendant during that period, she did not establishthat Win-Pro knew or should have known that, but for a mistake, the direct action would havebeen commenced against it as well. Accordingly, the plaintiff's motion for leave to amend thecomplaint should have been denied.
In view of the foregoing, we do not reach Win-Pro's additional contentions. Mastro, J.P.,Dickerson, Belen and Chambers, JJ., concur.