| Sally v Keyspan Energy Corp. |
| 2013 NY Slip Op 03469 [106 AD3d 894] |
| May 15, 2013 |
| Appellate Division, Second Department |
| Daniel Sally, Appellant, v Keyspan EnergyCorporation et al., Respondents. |
—[*1] Cullen and Dykman LLP, New York, N.Y. (Kenneth S. Buffaloe and Diana Neymanof counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order and judgment (one paper) of the Supreme Court,Kings County (Bayne, J.), entered May 13, 2011, as denied his motion pursuant to CPLR305 (c) for leave to amend the caption to name Keyspan-Ravenswood, LLC, as adefendant instead of Keyspan Corporation, or, alternatively, pursuant to CPLR 203 (c)for leave to amend the verified complaint to add Keyspan-Ravenswood, LLC, as adefendant.
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
On January 5, 2005, the plaintiff allegedly was injured while working at a powerplant in Long Island City. In 2005, the plaintiff commenced this action, asserting causesof action sounding in common-law negligence and violations of Labor Law§§ 200 and 241 (6) against Keyspan Energy Corporation and KeyspanCorporation (hereinafter together the Keyspan defendants), based upon their allegedstatus as owners or lessees of the subject property. It is undisputed that, in early October2007, almost three months prior to the expiration of the statute of limitations, the plaintifflearned that the actual property owner was Keyspan-Ravenswood, LLC (hereinafterKeyspan-Ravenswood), and that neither defendant possessed any ownership or leaseholdinterest in the property. Acting upon that information, still within the period permitted bythe statute of limitations, the plaintiff moved pursuant to CPLR 203 (c) for leave toamend the complaint to add Keyspan-Ravenswood as a defendant. Although the motionwas granted by order dated March 3, 2008, the plaintiff never filed a supplementalsummons (see CPLR 305 [a]) and amended complaint or served those papers onKeyspan-Ravenswood, allegedly due to counsel's ignorance of the rule that the statute oflimitations is tolled pending determination of such a motion (see Perez v ParamountCommunications, 92 NY2d 749 [1999]). More than two years after March 3, 2008,the plaintiff moved to correct his error in failing to name Keyspan-Ravenswood as adefendant, relying upon CPLR 305 (c) or, alternatively, CPLR 203 (c), to avoid the effectof the statute of limitations having long since expired. Under either statute, the SupremeCourt properly denied the plaintiff's motion.[*2]
CPLR 305 (c) authorizes the court, in itsdiscretion, to "allow any summons or proof of service of a summons to be amended, if asubstantial right of a party against whom the summons issued is not prejudiced." Wherethe motion is to cure "a misnomer in the description of a party defendant," it should begranted even after the statute of limitations has run where "(1) there is evidence that thecorrect defendant (misnamed in the original process) has in fact been properly served,and (2) the correct defendant would not be prejudiced by granting the amendmentsought" (Ober v Rye Town Hilton, 159 AD2d 16, 19-20 [1990]; see Smith v Garo Enters., Inc.,60 AD3d 751, 751-752 [2009]; Holster v Ross, 45 AD3d 640, 642 [2007]; Gennosa vTwinco Servs., 267 AD2d 200, 201 [1999]; Simpson v Kenston WarehousingCorp., 154 AD2d 526, 527 [1989]). CPLR 305 (c) does not apply in this case, wherethe plaintiff's mistake in failing to commence the action against Keyspan-Ravenswoodwithin the statute of limitations period had nothing to do with the misnomer, about whichthe plaintiff was fully informed before the statute of limitations expired (cf. Holster vRoss, 45 AD3d at 641). Moreover, since, under these circumstances,Keyspan-Ravenswood could not have been apprised that the plaintiff still intended tobring an action against it (cf.Holster v Ross, 45 AD3d 640 [2007]; Lewis v R.H. Macy & Co., 213AD2d 605 [1995]; Simpson v Kenston Warehousing Corp., 154 AD2d 526[1989]), the plaintiff has failed to demonstrate that Keyspan-Ravenswood would not beprejudiced by allowing such amendment.
Contrary to the defendants' contention, this Court may consider whether relief waswarranted under CPLR 203 (c), as the defendants were afforded the opportunity torespond, in their reply and surreply, to the arguments the plaintiff raised on this issue forthe first time in his reply and opposition papers to a cross motion by the defendants (see Matter of Kennelly v MobiusRealty Holdings LLC, 33 AD3d 380, 381-382 [2006]; cf. Matter of Allstate Ins. Co. vDawkins, 52 AD3d 826, 827 [2008]; Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677,678 [2005]). Nevertheless, under the circumstances discussed above, relief under CPLR203 (c) is not warranted.
As codified in CPLR 203 (c), "what is commonly referred to as the relation backdoctrine allows a claim asserted against a defendant in an amended filing to relate backto claims previously asserted against a codefendant for Statute of Limitations purposeswhere the two defendants are 'united in interest' (CPLR 203 [b])" (Buran vCoupal, 87 NY2d 173, 177 [1995]). For the rule allowing relation back to theoriginal date of filing under CPLR 203 (c) to apply, a plaintiff is required to prove that:"(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the newparty is united in interest with the original defendant, and by reason of that relationshipcan be charged with such notice of the institution of the action that the new party will notbe prejudiced in maintaining its defense on the merits by the delayed, otherwise stale,commencement, and (3) the new party knew or should have known that, but for amistake by the plaintiff as to the identity of the proper parties, the action would havebeen brought against that party as well" (Austin v Interfaith Med. Ctr., 264 AD2d702, 703 [1999]; see PansiniStone Setting, Inc. v Crow & Sutton Assoc., Inc., 46 AD3d 784, 786 [2007]; Porter v Annabi, 38 AD3d869, 870 [2007]; Pappas v 31-08 CafÉ Concerto, 5 AD3d 452, 453[2004]).
Here, the plaintiff failed to satisfy the third prong of the above test, because theproposed new defendant, Keyspan-Ravenswood, knew that the plaintiff's failure toproceed against it within the statute of limitations period was not the result of "a mistakeby the plaintiff as to the identity of the proper parties" (Austin v Interfaith Med.Ctr., 264 AD2d 702, 703 [1999]; see Arsell v Mass One LLC, 73 AD3d 668, 669 [2010]; Shapiro v Good SamaritanRegional Hosp. Med. Ctr., 42 AD3d 443, 444 [2007]; Pansini Stone Setting,Inc. v Crow & Sutton Assoc., Inc., 46 AD3d at 786). Likewise, the plaintiff hasfailed to satisfy the second prong as well, since "[a]pplication of the doctrine in suchcircumstances would likely result in prejudice to the adversary" (Buran v Coupal,87 NY2d at 181; see Matter ofMurphy v Kirkland, 88 AD3d 267, 276 [2011]), regardless of whether theproposed new defendant and the current defendants are united in interest. Finally, undercircumstances such as these, "a court would be justified in denying [the] plaintiff thebenefit of the doctrine in order to prevent delay or disruption in the normal course of thelawsuit" (Buran v Coupal, 87 NY2d at 181; see Matter of Murphy vKirkland, 88 AD3d at 276).
In light of the foregoing, we need not reach the plaintiff's remaining contentions.Dillon, J.P., Balkin, Austin and Sgroi, JJ., concur.