| Jacobson v Leemilts Petroleum, Inc. |
| 2012 NY Slip Op 08882 [101 AD3d 1599] |
| December 21, 2012 |
| Appellate Division, Fourth Department |
| John Jacobson, Respondent, v Leemilts Petroleum, Inc., DoingBusiness as Getty, et al., Defendants, and Bobby Petroleum Corp., Appellant. |
—[*1] Law Office of John J. Fromen, Esq., Buffalo, Magavern Magavern Grimm LLP (Edward J.Markarian of counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Timothy J. Drury, J.), entered June2, 2011 in a personal injury action. The order, among other things, granted plaintiff leave toamend his summons and complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he sustainedwhen a fuel pump suppression system at a gas station (premises) suddenly activated, therebycausing caustic, fire-retardant chemicals to be released onto him. In his summons and complaint,plaintiff named various unknown defendants as "John Doe" in the event that the nameddefendants were not the owners or operators of the premises or were not responsible for the fuelpump suppression system. After the complaint was filed, plaintiff's attorney was advised by aninsurance company that defendant Bobby Petroleum Corp. (Bobby) was the operator of thepremises. After the relevant statute of limitations expired, plaintiff moved by order to show causefor, inter alia, leave to amend his summons and complaint to substitute Bobby for the John Doedefendant identified as being responsible for the operation of the premises. Supreme Courtgranted plaintiff's motion.
Bobby contends that the court erred in relying upon CPLR 1024, concerning thecommencement of an action against an unknown party, as the basis for granting plaintiff's motionbecause that statute was referenced only in plaintiff's reply papers. We reject that contention. It iswell settled that contentions raised for the first time in reply papers are not properly before thecourt (see DiPizio v DiPizio, 81AD3d 1369, 1370 [2011]), but that was not the case here. Although plaintiff's originalmotion papers did not specifically refer to CPLR 1024, those papers stated that plaintiff wasseeking to substitute Bobby in place of the relevant John Doe named in the complaint. Bobby,therefore, had notice that plaintiff was relying on that statute before plaintiff's reply. Contrary toBobby's further contention, plaintiff demonstrated that he [*2]made "genuine effort[s] to ascertain [Bobby's] identit[y] prior to therunning of the [s]tatute of [l]imitations" (Luckern v Lyonsdale Energy Ltd. Partnership,229 AD2d 249, 253 [1997] [internal quotation marks omitted]). Bobby also contends that thedescription of John Doe in the summons and complaint for which it was substituted wasinadequate inasmuch as it did not provide Bobby with the requisite notice that it was the intendeddefendant (see Lebowitz v Fieldston Travel Bur., 181 AD2d 481, 482 [1992]). Thatcontention is raised for the first time on appeal and therefore is not properly before us (see Matter of Murphy v Graham, 98AD3d 833, 834 [2012]; Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]).
In light of our determination that CPLR 1024 applies, we see no need to address Bobby'scontention concerning the relation-back doctrine. Present—Fahey, J.P., Peradotto, Carni,Whalen and Martoche, JJ.