Philadelphia Indem. Ins. Co. v Citadel Servs., Inc.
Annotate this CaseDecided on May 25, 2016
Supreme Court, Chautauqua County
Philadelphia Indemnity Insurance Company a/s/o UPPER NY ANNUAL CONFERENCE OF THE UNITED METHODIST CHURCH a/k/a HURLBUT METHODIST CHURCH, Plaintiff
against
Citadel Services, Inc., Defendant.
K1-2015-204
FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP
Attorneys for Plaintiff
Manik J. Sain, Esq., appearing of Counsel
ROACH, BROWN, McCARTHY & GRUBER, P.C.
Attorneys for Defendant
Joseph V. McCarthy, Esq., of Counsel
Frank A. Sedita III, J.
The intriguing question presented to the court is whether plaintiff can utilize the relation-back doctrine to breathe new life into an otherwise moribund subrogation action.
On November 6, 2009, defendant Citadel Services, Inc., a Jamestown, NY plumbing contractor, completed installation of new steam piping at the Town of Chautauqua's Hurlbut Methodist Church. On November 13, 2013, the church sustained property damage due to a problem with the steam piping. Plaintiff Philadelphia Indemnity Insurance Company, which insured the church against property damage, covered the loss.
Plaintiff, as subrogee of the church, commenced a lawsuit against defendant to recover the money paid to its subrogor. Plaintiff's exclusive theory of liability, as set forth in its February 20, 2015 Complaint, was that damages to the church, " were caused solely as a result of the defendant's negligence, recklessness and carelessness in installing the steam pipe." In its June 5, 2015 Verified Bill of Particulars, plaintiff twice reiterated that its cause of action sounded solely in negligence, and went so far as to state, " there was no contract between the plaintiff's insured and defendant Citadel."
On March 3, 2016, defendant filed a motion to dismiss, pursuant to CPLR 3211(a)(5) or, [*2]in the alternative, a motion for summary judgment, pursuant to CPLR 3212. Defendant's principal contention is that recovery is barred, as a matter of law, because the three-year statute of limitations for a negligence claim expired before plaintiff commenced its lawsuit. Plaintiff opposes the motion and, pursuant to CPLR 3025(b), cross-moves for leave to amend its complaint to include a breach of contract claim.
A defendant in a subrogation action has against the subrogee all defenses that he would have against the subrogor, including the same statute of limitations defenses that could have been asserted against the subrogor (Walker v. Stein, 305 AD2d 972, 974-975; aff'd sub nom Allstate Insur. Co. v. Stein, 1 NY3d 416, 421). In cases brought against contractors, the accrual date for statute of limitations purposes is completion of performance, regardless of whether the claim is characterized in the complaint as negligence or breach of contract (City School Dist. Of City of Newburgh v. Hugh Stubbins & Associates, Inc., 85 NY2d 535, 538).
In order to prevail on its motion to dismiss, defendant must establish, prima facie, that the time in which to sue has expired. Upon defendant's satisfaction of this burden, the burden shifts to plaintiff to aver evidentiary facts that would establish the statute of limitations has not expired, that it is tolled, or that an exception to the statute of limitations applies (CRC Litigation Trust v. Marcum, LLP, 132 AD3d 938, 939; Lake v. New York Hosp. Med. Ctr. Of Queens, 119 AD3d 843, 844).
As measured from the accrual date of November 6, 2009, the three-year statute of limitations for a negligence action expired on November 6, 2012. Plaintiff filed its Summons and Complaint on February 20, 2015. Defendant has therefore established, prima facie, that the time in which to sue a negligence claim had expired. The burden of persuasion thus shifts to plaintiff.
While conceding, at oral argument, that a negligence claim is time barred, plaintiff believes its epiphanous breach contract claim is not. In this regard, plaintiff principally relies upon CPLR 203(f), which states: "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."
This principle, termed the "relation-back doctrine," permits a plaintiff to interpose a claim or cause of action which would ordinarily be time barred, where the allegations of the original complaint give notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint. The sine qua non of the relation-back doctrine is notice. Where the allegations of the original complaint give the defendants notice of the facts and occurrences giving rise to the new cause of action, the new cause of action may be asserted. However, where the original allegations do not provide the defendants notice of the need to defend against the allegations of the amended complaint, the doctrine is unavailable (Moezina v. Ashkanazi, 136 AD3d 90, 992; Pendleton v. City of New York, 44 AD3d 733, 736). This is especially so when the proposed amendment is patently devoid of merit (see, Calamari v. Panos, 131 AD3d 1088, 1089; Pink v. Ricci, 100 AD3d 1446, 1448; Manufacturers & Traders Trust Co. v. Reliance Insur. Co., 8 AD3d 1000; Christiano v. Chirenza, 1 AD3d 1039).
Plaintiff contends the notice requirement is satisfied because the "same essential facts underpin" both the original complaint's negligence claim and the proposed amended complaint's breach of contract claim. Such an argument overlooks the fact plaintiff affirmatively and repeatedly advised the defendant that it was pursuing a negligence claim only. Moreover, plaintiff did not merely neglect to mention its breach of contract theory; to the contrary, it [*3]represented that there was no contract between the parties. Clearly, the allegations of the original complaint, as well as its companion pleadings, did not provide defendant with notice of the need to defend against the allegations of the proposed amended complaint.
Finally, it is worth noting plaintiff could not provide a clear answer when asked, at oral argument, why it had not brought a breach of contract cause of action before the applicable statute of limitations (six years) expired on November 9, 2015. Given its prior representation that there was no contract between the parties and its present inability to produce one, the answer is evident: plaintiff's proposed breach of contract claim is patently devoid of merit.
Plaintiff cannot utilize the relation-back doctrine to revive its lawsuit. Accordingly, plaintiff's motion for leave to amend its complaint is denied and defendant's motion to dismiss is granted.
The foregoing shall constitute the order of this court.
Dated: May 25, 2016
HON. FRANK A. SEDITA, III
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