Ciampi v Siviglia Bros. Holding Corp.

[*1] Ciampi v Siviglia Bros. Holding Corp. 2007 NY Slip Op 50324(U) [14 Misc 3d 140(A)] Decided on March 1, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKEON, P.J., McCOOE, SCHOENFELD, JJ
570625/06.

Basil Ciampi, Plaintiff-Respondent,

against

Siviglia Brothers Holding Corp., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), entered April 28, 2006, which granted plaintiff's motion to serve a supplemental summons and amend the complaint to add a new party defendant.

PER CURIAM:

Order (Francis M. Alessandro, J.), entered April 28, 2006, reversed, with $10 costs, and motion denied.

Plaintiff, relying on the relation back doctrine (see CPLR 203[b]; Buran v Coupal, 87 NY2d 173, 177 [1995]), sought to amend the complaint to add a new party defendant. Plaintiff's showing that the proposed defendant and named defendant have the same shareholder and president was insufficient to establish that the two entities were united in interest (see Mercer v 203 E. 72nd St. Corp., 300 AD2d 105, 106 [2002]). Unity in interest will not be found unless there is some "relationship between the parties giving rise to vicarious liability of one for the conduct of the other" (Valmon v 4 M&M Corp., 291 AD2d 343 [2002]), which is plainly absent here. The interests of the named and proposed defendants are not "such that they stand or fall together, and that judgment against one will similarly affect the other" (Lord, Day & Lord Barrett Smith v Broadwall Mgt. Corp., 301 AD2d 362 [2003]).

This constitutes the decision and order of the court.
Decision Date: March 1, 2007