Fox v Culligan Water Sys.

[*1] Fox v Culligan Water Sys. 2006 NY Slip Op 50964(U) [12 Misc 3d 1159(A)] Decided on April 21, 2006 Supreme Court, Nassau County Feinman, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 21, 2006
Supreme Court, Nassau County

Debra Fox, Plaintiff,

against

Culligan Water Systems, CULLIGAN WATER COMPANY OF NEW YORK, INC., U.S. FILTER CORP. and "JOHN DOE DRIVER", Defendants.



9096/05

Thomas Feinman, J.

The defendants move for an order pursuant to CPLR §3211(a)(7) dismissing each and every cause of action contained within plaintiff's verified complaint, and an order pursuant to CPLR §3212 granting summary judgment.

The plaintiff cross-moves for an order pursuant to CPLR §305(c) granting plaintiff leave to amend the summons and verified complaint to correctly name the corporate defendant, "Culligan Transport, Inc.," incorrectly sued herein as Culligan Water Systems and Culligan Water Company of New York, Inc., and for an order pursuant to CPLR §203(c) amending the caption to add as an additional party defendant, Puro Water Group, Inc. Plaintiff also submits opposition to the defendants' motion to dismiss. The defendants submit opposition to the cross-motion and a reply to plaintiff's opposition. Plaintiff submits a reply to defendants' opposition.

The plaintiff initiated this action for personal injuries which resulted from a motor vehicle accident that occurred on July 12, 2002. The plaintiff claims that she was a pedestrian on the [*2]sidewalk when she was struck by a Culligan Water Truck, and that the operator of the truck left the scene of the accident. As per the police report, the Culligan Water Truck was identified as bearing truck No.960314. The defendants have demonstrated that such truck number was leased to "Culligan Transport, Inc." and not the named defendants herein, and that the truck was operated by an employee of "Puro Water Group, Inc." and not an employee of the named defendants. The defendants have submitted the affidavit of Daniel Porter, a manager of Puro Water Group, Inc. Mr. Porter avers that the individual who was driving the subject truck was an employee of Puro Water Group, Inc., and not an employee of the named defendants. As the statute of limitations has expired, the defendants submit that the plaintiff's claims against "Culligan Transport, Inc" and "Puro Water Group, Inc." are time-barred.

The plaintiff's motion to amend the summons and verified complaint to correctly name the corporate defendant, "Culligan Transport, Inc.," incorrectly sued herein as Culligan Water Systems and Culligan Water Company of New York, Inc., is hereby granted. "A motion to amend the summons and complaint to reflect the proper name of a defendant should be granted even after the Statute of Limitations has run where (1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought". (Hayes v. Apples & Bells, 213 AD2d 1000). It has been held that although the statute of limitations had expired, where an agent authorized to accept service on both corporations had been timely served with process, and allegations in the complaint fairly apprised the corporation that they were parties plaintiff intended to name, the summons and complaint could be amended. (Balderman, M.D. v. Capital City/American Broadcasting Company, Inc., 233 AD2d 861).

Here, the plaintiff has demonstrated that the named defendant, Culligan Water Company of New York, Inc., was served by delivering and leaving the summons and complaint to CT Corp., 11 Eighth Avenue, New York, New York, 10011, an agent authorized to accept service of process, and that Culligan Transport, Inc. has also designated CT Corp., 11 Eighth Avenue, New York, New York, 10011 as an agent authorized to accept service of process. The defendants do not dispute that the plaintiff timely served process on an agent authorized to accept service on both corporations. Under these circumstances, where service was effected upon the defendant, Culligan Water Company of New York, Inc., under a misnomer, the defendant was de facto fully apprised that it was the intended party defendant, and jurisdiction was obtained over it. (Gajdos v. Haughton Elevator, 131 AD2d 428). Additionally, the defendants herein have not demonstrated, or for that matter, have not even argued that "Culligan Transport, Inc." will be prejudiced by the granting of the amendment sought.

The plaintiff's motion for an order pursuant to CPLR §203(c) amending the caption to add as an additional party, Puro Water Group, Inc., is also granted. The CPLR §203(c) "relation back rule" provides, in pertinent part, that a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest when the summons is served upon the defendant. The Second Department in Brock v. Bua, 83 AD2d 61, gave the rule a three-prong test, which was adopted by the Court of Appeals in Mondello v New York Blood Center, 80 [*3]NY2d 219. "The Brock test examines whether (1)both claims arose out of the same conduct, transaction or occurrence; (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be 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 an excusable mistake by the plaintiff in originally failing to identify the property parties, the action would have been brought against the additional party united in interest as well." (Mondello, supra ). The third prong of this test was further modified by the Court of Appeals in Buran v. Coupal, 87 NY2d 173, whereby the defendant knew or should have known that plaintiff merely failed to timely serve it by "mistake" and not by "excusable mistake."

"New York law requires merely mistake-not excusable mistake-on the part of a litigant seeking the benefit of the relation back doctrine." (Id.).

"Parties are united in interest only where the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other."(Prudential Ins. Co. v. Stone, 270 NY 154). The defendants' interest are united "only where one is vicariously liable for the acts of the other," or, "more often, the principle is given the Latin name of respondeat superior." (Connell v. Hayden, 83 AD2d 30).

Here, Culligan Transport, Inc., as owner of the subject vehicle is liable for injuries resulting from Puro Water Group, Inc. employee's operation of the subject vehicle, (VTL § 388(1)), and therefore, the defendants are "united in interest." (Poulard v. Papamiholopoulos, 245 AD2d 266). Culligan Transport, Inc., pursuant to VTL § 388(1), is vicariously liable for the acts of its driver.

While the defendants do not argue that the first and third prongs of the Brock test do not apply, clearly both claims arose out of the same conduct, transaction or occurrence, and the new party, Puro Water Group, Inc., knew or should have known, that but for a mistake by the plaintiff in originally failing to identify the property parties, the action would have been brought against the aforesaid additional party. Daniel Porter, route manager for Puro Water Group, Inc., avers that the individual who was driving the subject truck was an employee of Puro Water Group, Inc., and therefore, Puro Water Group, Inc., is ultimately liable for the acts of its employee. The interrelationship between the defendants, the owner of the vehicle, Culligan Transport, Inc., and the operator, employee of Puro Water Group, Inc., is such that judgment against one would similarly affect the other. (Lopez v. Interstate Concrete, Inc., 265 AD2d 383). Further, "[a]lthough the statute of limitations has run in this instance, when a driver operates a vehicle with permission of the owner, the two are united in interest since the owner is vicariously liable for the negligence of the driver." (Bouchama v. S&R Truck Rental, Inc., 806 NYS2d 443 {9 Misc 3d 1110(A)} ).

In light of the foregoing, the defendants' motion is denied, and the plaintiff's cross-motion is granted in its entirety. Plaintiff is granted leave to amend the summons and verified complaint [*4]to correctly name defendant, Culligan Water Transport, Inc., and leave to add an additional party, Puro Water Group, Inc. Therefore, the new caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NASSAU

______________________________________________

DEBRA FOX,

Plaintiff,

-against-

CULLIGAN TRANSPORT, INC., PURO WATER

GROUP, INC., U.S. FILTER CORP. and "JOHN

DOE DRIVER,"

Defendants.

_____________________________________________

The parties are hereby directed to appear for a Preliminary Conference in this matter on May 10, 2006 at 9:30 A.M. in the basement located at the Supreme Court, County of Nassau.

This constitutes the decision and order of this Court.

Dated: April 21, 2006E N T E R :

J.S.C.

cc: Schachter & Levine, LLP

Wilson, Esler, Moskowitz, Edelman & Dicker, LLP