| Nasca v DelMonte |
| 2013 NY Slip Op 07631 [111 AD3d 1427] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Kathleen Nasca et al., Appellants, v Mark Louis DelMonte,Doing Business as Niagara Chiropractic Office (Formerly Incorrectly Sued Hereinas"Niagara Chiropractic"), Respondent, et al., Defendant. |
—[*1] Feldman Kieffer, LLP, Buffalo (Matthew J. Kibler of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.),entered May 8, 2012. The order denied the motions of plaintiff to amend the amendedcomplaint and to add a party defendant.
It is hereby ordered that the order so appealed from is unanimously modified on thelaw by granting the June 16, 2011 motion upon condition that plaintiffs shall serve theproposed pleading within 30 days of service of a copy of the order of this Court withnotice of entry and as modified the order is affirmed without costs in accordance with thefollowing memorandum: Plaintiffs commenced this medical malpractice action seekingdamages for injuries sustained by Kathleen Nasca (plaintiff) as a result of a cervicalmanipulation performed by defendant Curtis R. Venne, D.C. The amended complaintnamed Venne and Mark Louis DelMonte, doing business as Niagara Chiropractic Office,as defendants. Over a year after the statute of limitations expired, plaintiffs filed twomotions seeking leave to amend the amended complaint.
In their first motion (hereafter, March motion), plaintiffs sought to amend theamended complaint to add Mark Louis DelMonte, in his individual capacity, and MarkLouis DelMonte, D.C., P.C. (DelMonte P.C.) as defendants. According to plaintiffs,evidence had been adduced in discovery supporting the claims that DelMonte P.C. is asham corporation and that misrepresentations were made to the public and to plaintiffwith respect to the employment status of Venne. Plaintiffs submitted a proposed "secondamended complaint" in connection with the March motion. We note at the outset withrespect to DelMonte in his individual capacity that plaintiffs previously namedDelMonte, doing business as Niagara Chiropractic Office, as a defendant in the amendedcomplaint. Plaintiffs thus were not required to seek leave to amend the amendedcomplaint to name him as a defendant in his individual capacity (see BusinessCorporation Law § 1505 [a]).[*2]
While the March motion was pending, plaintiffsmade a second motion (hereafter, June motion), characterized by plaintiffs as anapplication to amend the amended complaint to add DelMonte P.C. as a "partydefendant" and to deem service made nunc pro tunc on that defendant. In the Junemotion, plaintiffs sought "leave to . . . file and serve the third amendedcomplaint" based on grounds that included the relation back doctrine. In connection withthe June motion, plaintiffs submitted a proposed "third amended complaint" that issubstantively identical to the proposed "second amended complaint." Supreme Courtdenied the June motion and deemed the March motion to be moot on the ground thatplaintiffs' claims are barred by the statute of limitations. The court characterized theMarch motion as one seeking leave to amend the amended complaint and deemed theJune motion as one to add a party defendant. We conclude that the motions seekessentially the same relief and thus that the March motion was superseded by the Junemotion. We further conclude that the court erred in denying the June motion, and wetherefore modify the order accordingly.
We conclude that the court erred in denying plaintiffs' motion with respect toDelMonte P.C. based upon the relation back doctrine. In order for the relation backdoctrine to apply, a plaintiff must establish that "(1) both claims arose out of the sameconduct, transaction, or occurrence, (2) the additional party is united in interest with theoriginal party, and by reason of that relationship can be charged with notice of theinstitution of the action such that he or she will not be prejudiced in maintaining adefense on the merits, and (3) the additional party knew or should have known that, butfor a mistake by the plaintiff as to the identity of the proper parties, the action wouldhave been brought against the additional party as well" (Kirk v University OB-GYNAssoc., Inc., 104 AD3d 1192, 1193-1194 [2013]; see Buran v Coupal,87 NY2d 173, 178 [1995]; Haidt v Kurnath, 86 AD3d 935, 936 [2011]).
Here, we conclude that the first prong of the relation back doctrine test is satisfiedbecause the claims against DelMonte P.C. arise out of the same occurrence as thatalleged against DelMonte, doing business as Niagara Chiropractic Office, i.e., Venne'streatment of plaintiff (see Kirk, 104 AD3d at 1193-1194; Cole v Tat-SumLee, 309 AD2d 1165, 1167 [2003]). We further conclude that plaintiffs satisfied thesecond prong of that test inasmuch as DelMonte P.C. employed Venne and therefore maybe held vicariously liable for his conduct (see Verizon N.Y., Inc. v LaBarge Bros. Co., Inc., 81 AD3d1294, 1296 [2011]; see alsoDe Sanna v Rockefeller Ctr., Inc., 9 AD3d 596, 598 [2004]; Schiavone vVictory Mem. Hosp., 300 AD2d 294, 295 [2002]). We conclude that plaintiffs alsosatisfied the third prong of that test inasmuch as they established that their failure toinclude DelMonte P.C. as a defendant in the original or first amended complaint " 'was amistake and not . . . the result of a strategy to obtain a tactical advantage' "(Haidt, 86 AD3d at 936; see Kirk, 104 AD3d at 1193-1194; see alsoBuran, 87 NY2d at 176).
Finally, we note that plaintiffs' inclusion of allegations in the proposed thirdamended complaint relating to their attempt to pierce the corporate veil is of no moment.Piercing the corporate veil is not "a cause of action independent of that against thecorporation; rather it is an assertion of facts and circumstances which will persuade thecourt to impose the corporate obligation on its owners" (Matter of Morris v NewYork State Dept. of Taxation & Fin., 82 NY2d 135, 141 [1993]; see Robinson v Day, 103AD3d 584, 588 [2013]; H & R Project Assoc. v City of Syracuse, 289 AD2d967, 968 [2001]). By their additional allegations, plaintiffs did not assert a new cause ofaction. Present—Smith, J.P., Centra, Fahey, Carni and Whalen, JJ.