| Goldstein v Brookwood Bldg. Corp. |
| 2010 NY Slip Op 05104 [74 AD3d 1801] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| Neil Goldstein, D.D.S., et al., Respondents, v Brookwood BuildingCorporation, Defendant, Weyerhaeuser Company, Respondent, and Spall Realty Corporation,Appellant. |
—[*1] Faraci Lange, LLP, Rochester (Stephen G. Schwarz of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Monroe County (Evelyn Frazee, J.), enteredOctober 26, 2009. The order, among other things, denied the motion of defendant Spall RealtyCorporation for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action alleging that they sustained damages totheir property as well as personal injuries as a result of mold in the basement of theirnewly-constructed home. Supreme Court properly denied that part of the motion of defendantSpall Realty Corporation (Spall Realty) for summary judgment dismissing the second amendedcomplaint against it. Even assuming, arguendo, that Spall Realty met its initial burden ofestablishing that plaintiffs commenced the action against it after the three-year statute oflimitations set forth in CPLR 214-c (2) had expired, we conclude that plaintiffs met their burdenof establishing the applicability of the relation-back doctrine (see generally Xavier v RY Mgt. Co., Inc., 45 AD3d 677, 678[2007]). We reject Spall Realty's contention that plaintiffs failed to establish that the third prongof that doctrine applied, i.e., that Spall Realty "knew or should have known that but for a mistakeby the plaintiff[s] as to the identity of the proper parties, the action would have been broughtagainst [it] as well" (Morel vSchenker, 64 AD3d 403, 403 [2009]; see Buran v Coupal, 87 NY2d 173, 178[1995]; see also Brock v Bua, 83 AD2d 61, 69 [1981]). "[P]laintiffs established that theirfailure to include [Spall Realty] as a defendant was a mistake and not . . . the resultof a strategy to obtain a tactical advantage" (Brown v Aurora Sys., 283 AD2d 956, 957[2001]; see generally Buran, 87 NY2d at 181). Plaintiffs had discussed the constructionof their new home with Spall Realty, but their construction contract was with defendantBrookwood Building Corporation (Brookwood), and plaintiffs were required to make allpayments to Brookwood. Plaintiffs were not [*2]aware thatBrookwood had no employees and that Brookwood had entered into a contract with Spall Realtyto perform project management work on the construction of the home, including hiring all thesubcontractors. Present—Martoche, J.P., Smith, Centra, Sconiers and Pine, JJ.