Warner v Kain

[*1] Warner v Kain 2016 NY Slip Op 51099(U) Decided on July 18, 2016 Supreme Court, St. Lawrence County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2016
Supreme Court, St. Lawrence County

Lowell T. Warner and LISA M. WARNER, Plaintiffs,

against

Kyle E. Kain, JOHN E. KAIN, DOMINO'S PIZZA, LLC and NORTH COUNTRY PIZZA, INC., Defendants.



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The Mills Firm, Clifton Park (Christopher K. Mills, of counsel), for plaintiffs.

Law Office of Fred Lutzen, East Syracuse (Fred Lutzen, of counsel), for defendants Kain and Domino's Pizza, LLC.

Melvin & Melvin, PLLC, Syracuse (Susan E. Otto, of counsel), for defendant North Country Pizza, Inc.
Robert J. Muller, J.

This is a motion by North Country Pizza. Inc. (hereinafter "NC Pizza"), to reargue the denial of its prior Cross-Motion for dismissal of Plaintiffs' Amended Verified Complaint based upon a lack of personal jurisdiction (see CPLR §3211[a][8]).

For the reasons that follow, the Court grants NC Pizza's motion. Plaintiffs' failure to follow the procedural mandates of CPLR § 1003 prior to the filing and service of its amended summons and verified complaint, constitutes a fatal procedural defect and, as such, plaintiffs' amended pleading must be dismissed. The joinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and noncompliance renders the pleadings jurisdictionally defective. See Crook v. du Pont de Nemours, 81 NY2d 807 [1993], affirming 181 AD2d 1039; Kelley v. Schneck, 106 AD3d 1175 [2013]; Yadegar v. International Food Mkt., 306 AD2d 526, 526 [2003]; Halliday v. Town of Halfmoon, 235 AD2d 709, 711 [1997]. Plaintiffs' counsel's belief and reliance that an insurer or their legal counsel consented to the supplemental pleadings is of no avail.

Although a defendant may waive the "jurisdictional defect" of improper joinder where the defendant answers the amended complaint without raising an objection to the improper joinder, [*2]and then delays until after the limitations period has run before moving to dismiss (see Tarallo v Gottesman, 204 AD2d 303, 303 [1994]; Santopolo v Turner Construction Co., 181 AD2d 429 [1992]; Gross v BFH Co., Inc., 151 AD2d 452 [1989]; McDaniel v Clarkstown Central District No. 1, 83 AD2d 624, 625 [1981]; compare Public Adm'r of Kings County v McBride, 15 AD3d 558, 559 [2005]), NC Pizza raised the improper joinder in its first affirmative defense.

The motor vehicle accident which is the subject of the complaint occurred on June 22, 2012, the amended summons and complaint was filed on May 28, 2015, just prior to the expiration of the three year statute of limitations. This determination that the amended summons and complaint is a nullity does not address whether the claim may now ever be brought (see CPLR § 203 [b]) as that issue was not previously raised in the motion for which reargument has now been granted..

NOW THEREFORE, based upon the foregoing, it is hereby

ORDERED that, pursuant to CPLR§ 2221 (d), NC Pizza's motion for reargument is GRANTED; and it is further

ORDERED that, pursuant to CPLR § 3211 (a)(8), plaintiffs' amended summons and verified complaint is DISMISSED, and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated February 1, 2016 and the submissions enumerated. Counsel for the moving defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR § 5513.

Dated: July 18, 2016

Lake George, New York

ROBERT J. MULLER, J.S.C.

ENTER:

Papers Reviewed:

1. Affidavit of Susan E. Otto, Esq. sworn to February 1, 2016 together with Exhibits "1 - 3";

2. Supporting Memorandum of Law dated February 1, 2016;

3. Affirmation in Opposition of Christopher K. Mills, Esq., dated March 29, 2016;

4. Affidavit of Susan E. Otto, Esq. sworn to June 23, 2016 and

5. Reply Memorandum of Law dated June 22, 2016.