Tristaino v Teitler

[*1] Tristaino v Teitler 2009 NY Slip Op 51876(U) [24 Misc 3d 1244(A)] Decided on September 1, 2009 Supreme Court, Suffolk County Pastoressa, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2009
Supreme Court, Suffolk County

Benedict J. Tristaino, Plaintiff(s),

against

Scott R. Teitler, Defendant(s),



27620/05



ATTORNEYS FOR PLAINTIFF(S):

BRODY, O'CONNOR & O'CONNOR, ESQS.

7 BAYVIEW AVENUE

NORTHPORT, NY 11768

ATTORNEYS FOR DEFENDANT(S):

ABAMONT & ASSOCIATES

200 GARDEN CITY PLAZA, STE. 400

P.O. BOX 9250

GARDEN CITY, NY 11530

ATTORNEY FOR PROPOSED DEFENDANT:

BOND , SCHOENECK & KING, PLLC

1399 FRANKLIN AVENUE, SUITE 200

GARDEN CITY, NEW YORK 11530

Joseph C. Pastoressa, J.

In the instant motion, the plaintiff seeks to utilize the relation back doctrine in order to add an additional defendant after expiration of the applicable Statute of Limitations.

To insure that cases are tried on the merits, and to avoid injustices or otherwise unfair results caused by procedural violations resulting from mere litigation oversights, the standard for [*2]applications to amend pleadings is an extremely permissive one. In general, "in the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit"(Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 874; see CPLR 3025 [ b]). Even a Statute of Limitations defense may not serve as a bar to an amendment adding a defendant, providing the plaintiff can establish proper applicability of the relation back doctrine, a longstanding rule of law established to further the aforementioned goals, and presently codified in CPLR 203[b]. The relation back doctrine enables a plaintiff to correct a pleading error by adding a new claim or a new party after the statutory limitations period has expired. The plaintiff bears the burden to establish the applicability of the doctrine once the defendant has demonstrated that plaintiff's cause of action is barred by the Statute of Limitations (Spaulding v Mt. Vernon Hosp., 283 AD2d 634,635). In both New York, and under the Federal Rules of Civil Procedure, rule 15(c), there is a three prong test which a plaintiff must meet before the relation back doctrine can be applied. Pursuant to that test, a plaintiff must show that (1) both claims arose out of the same conduct, transaction or occurrence, (2) the original defendant and the new defendant are united in interest, so that the latter can be charged with such notice of the commencement of the action that the new party will not be prejudiced in maintaining a defense, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well (Monir v Khandakar, 30 AD3d 487, 488; Williams v Majewski, 291 AD2d 816,817; Buran v Coupal, 87 NY2d 173,178; Cole v Tat-Sum Lee, 309 AD2d 1165; Brock v Bua, 83 AD2d 61,69). In New York, "only an excuse, not a reasonable excuse, is necessary to support the plaintiff's application to add a new defendant, as long as the delay was not intentional" (Pansini Stone Setting, Inc. v Crow and Sutton Associates, Inc., et. al., 46 AD3d 784, 787).

Applying these requirements to the procedural facts of this case, which are undisputed, the first two prongs of the test are clearly satisfied (see, Rivera v Fishkin, 48 AD3d 663). This action was commenced by summons and complaint dated December 6, 2005, for personal injuries arising out of a motor vehicle accident that occurred on January 20, 2004, at approximately 9:30 a.m., at or near the intersection of Moffit Boulevard and Saxon Avenue, Bay Shore, New York. Issue was joined by service of an answer on behalf of the defendant, Scott R. Teitler, dated February 21, 2006. A preliminary conference order dated June 21, 2007 was entered, and the plaintiff deposed the defendant on October 8, 2007, wherein the defendant revealed that on the day of the accident he was employed as a salesperson at 84 Lumber Company, and that he was going to a job site in Long Beach when the accident occurred. Thereafter, plaintiff's counsel sent a letter dated September 11, 2008 to 84 Lumber Company first informing them of their liability under the theory of vicarious liability.

The plaintiff's attorney avers that at no time before the deposition of the defendant was he aware of the fact that the defendant was operating his vehicle while employed at 84 Lumber Company and driving to a job site for his former employer. The proposed additional defendant 84 Lumber Company opposes the motion and submits an affidavit of Robert J. Bosiloric, General Counsel, which avers that 84 Lumber Company had no knowledge of the lawsuit until plaintiff's counsel's letter dated September 11, 2008. Mr. Bosiloric's affidavit avers that plaintiff's employment with 84 Lumber Company was terminated on January 6, 2006 and that the defendant [*3]Teitler was served with the lawsuit on February 2, 2006. The proposed defendant argues that plaintiff's delay in filing the within motion deprived 84 Lumber Company the opportunity to investigate the facts of this incident.

In this case the first prong has been satisfied because the plaintiff's claims against the proposed additional defendant arose out of the same conduct or occurrence. The second prong is met because it is well established that a business corporation may be held vicariously liable for the torts of its employee committed within the scope of the corporation's business (see, Connell v Hayden, 83 AD2d 30). It is undisputed that the defendant Teitler was employed and working for the proposed defendant at the time of the alleged accident and therefore the defendant Teitler and the proposed defendant are "united in interest"(Prudential Ins. Co. of America v Stone, 270 NY 154, 159; Gatto v Smith-Eisenberg, 280 AD2d 640, 641; Desiderio v Rubin, 234 AD2d 581, 583). It is the third prong of the test, however, which creates an obstacle for the plaintiff. In order to prevail the plaintiff must show that the putative new defendant knew or should have known within the limitations period that, but for a mistake by plaintiff concerning the identity of the proper party, the action would have been brought against the new defendant as well. It is uncontroverted that such is not the case. The subject accident occurred on January 20, 2004. The plaintiff first deposed defendant Teitler on October 8, 2007 wherein defendant Teitler testified that he was working as an employee of 84 Lumber Company. The 84 Lumber Company first received notice of its potential liability upon receipt of plaintiff's counsel's letter of September 2008, almost one full year after the deposition, and eight months after expiration of the Statute of Limitations. While it has been held that unreasonably failing to act promptly to add a defendant is not a basis for denying a plaintiff's motion to amend, as long as the delay was not undertaken intentionally to gain a tactical advantage (Pansini Stone Setting, Inc. v Crow and Sutton Associates, Inc.,et. al., 46 AD3d 784), the United States Supreme Court has called notice to the defendant within the applicable limitations period the "linchpin" of the relation-back doctrine (see, Schiavone v Fortune, 477 US 27, 31; see also, Buran v Coupal, 87 NY2d at 180; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443). The doctrine vests courts with "sound judicial discretion" to identify cases "that justify relaxation of limitations strictures... to facilitate decisions on the merits" , but only if the correction will not cause undue prejudice to the plaintiff's adversary (Duffy v Horton Memorial Hosp., 66 NY2d 473; Lewis, The Excessive History of Federal Rule 15(c) and Its Lessons for Civil Rules Revision, 85 Michigan L Rev 1507, 1512). Thus, in applying the relation back doctrine it is important to stay mindful that the doctrine undercuts important policy considerations set forth by the legislature in its enactment of Statutes of Limitations. The addition of a new defendant "implicates more seriously these policy concerns than simply the relation back of new causes of action since, in the latter situation the defendant is already before the court" ( Buran v Coupal, supra at 178). The primary purpose of a limitations period is fairness to a defendant, and it is in that vein where notice to the defendant, as the United States Supreme Court and our own Court of Appeals have emphasized, is so critical. Here, in this case, it is conceded that the proposed new defendant had no idea that there had been an accident, much less that a lawsuit was pending, or that it would be among the named defendants, until well after expiration of the Statute of Limitations. It is because of this deficiency that the plaintiff cannot be afforded the benefit of the relation back doctrine, and the application must be denied. While the Court of Appeals has eschewed any "excusability" [*4]analysis as an unwise diversion of judicial attention from the primary focus on whether the defendant had notice (Buran v Coupal, supra at 180), several appellate level decisions have referenced plaintiff's actions or inactions in deciding whether to apply the doctrine. Hence courts have considered a plaintiff's "failure to make a timely and genuine attempt" to ascertain the proposed defendant's identity (see, Hall v Rao, 26 AD3d 694, 696), or a plaintiff's failure to request depositions until after expiration of the Statute of Limitations (see, D'Orso v Shaffer, 155 AD2d 508),or a plaintiff's delay in making a motion to amend until more than a year after learning the identity of the new defendant (see, Snolis v Biondo, 21 AD3d 546). In the case at bar, there was a delay of almost two years after commencement before defendant's deposition was taken, and then following the defendant's revelation that he was working as an employee of 84 Lumber Company, there was a further delay of approximately a year before plaintiff first notified 84 Lumber Company of its possible liability as an additional defendant in this action. Clearly, under these circumstances the relation back doctrine should not be invoked even where an additional defendant's liability arises vicariously

(Flederbach, et. al., v Fayman, et. al., 57 AD3d 474).

Accordingly for the foregoing reasons the motion is denied.

This shall constitute the decision and order of the court.

DATED: September 1, 2009Joseph C. Pastoressa