Andreyev v Zito

[*1] Andreyev v Zito 2007 NY Slip Op 51181(U) [15 Misc 3d 1146(A)] Decided on June 8, 2007 Supreme Court, Suffolk County Burke, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2007
Supreme Court, Suffolk County

Eileen Andreyev and Gregory Andreyev, Plaintiff(s),

against

Joseph Zito, Louise Hair Studio, LLC d/b/a Salon Di Moda, Louise Pantazis, d/b/a Salon Di Moda, Louise Pantazis, Individually, I.P.I. Industries, Inc., Sisbro Contracting Corp., Melos Construction Corp., County of Suffolk and Town of Babylon, Defendant(s).



027163/2004



John P. Gianfortune, Esq.

Attorneys for Plaintiff(s)

265 Sunrise Highway, Suite 30

Rockville Centre, New York 11570

Joseph A. Milligan, Esq.

Attorneys for Defendant Zito

200 West Main Street, Suite 203

P.O. Box 328

Babylon, New York 11702

Hammill, O'Brien, Croutier,

Dempsey & Pender, P.C.

Attorneys for Defendants Pantazis & Louise Hair Studio, LLC

154 Terry Road, P.O. Box 883

Smithtown, New York 11787-0829

Edward D. Burke, J.

The plaintiff, Eileen Andreyev, was injured on February 28, 2004 in a fall at a commercial premises owned and/or operated as a hair salon by defendants Zito, Salon DiModa, Inc. and Louise Pantazis. In November of 2004, the plaintiffs commenced this action against said defendant to recover damages, both direct and derivative, sustained by reason of the personal injuries suffered by plaintiff, Eileen Andreyev, on February 28, 2004.

On March 24, 2005, the plaintiff filed a supplemental summons and amended complaint with the Clerk of the Court which purported to add, as new party defendants to this action, the following corporate entities: I.P.I Industries, Inc., SISBRO Contracting Corp., and the moving defendant, Melos Construction Corp. No stipulation signed by the original parties to this action was filed with the court prior to the plaintiffs' filing and service of the supplemental summons and amended complaint. Nor did the plaintiffs obtain leave of court to file and serve said supplemental summons and amended complaint. Moving defendant, Melos Construction Corp., (hereinafter referred to as "defendant Melos") appeared herein by service of an answer, dated April 19, 2005, which answer contained, as affirmative defense numbered "Seventh", a failure on the part of the plaintiffs to properly join the moving defendant as a party defendant to this action in accordance with CPLR 1003.

The plaintiff then commenced a second action against the County of Suffolk and the Town of Babylon alleging therein, among other things, that said municipal defendants created the dangerous condition on the property of the defendants in this action with purportedly caused the injured plaintiff's fall. By motion returnable September 6, 2006 and decided by short form order dated September 13, 2006, said action was consolidated into this action.

By the instant motion, defendant Melos seeks dismissal of the plaintiffs' amended [*2]complaint on the grounds that the filing and service thereof, together with the supplemental summons, failed to comport with the requirements imposed upon same by the relevant provisions of CPLR 1003. The moving papers clearly established that the filing and service of the plaintiffs' supplemental summons and amended complaint, by which the moving defendant and two (2) other corporate entities were purportedly joined as party defendants to this action, was not filed within the twenty (20) day "as of right" time period contemplated by CPLR 1003. Nor was said filing preceded by the execution and filing of a stipulation executed by all parties to the action as of March 24, 2005, nor by an order of this court granting the plaintiff leave to file and serve the supplemental summons and amended complaint dated March 22, 2005. Defendant Melos thus demands an order dismissing the plaintiffs' amended complaint as jurisdictionally defective.

In opposing the instant motion, the plaintiff claims that although no written stipulation of the parties to this action was in existence at the time of the filing of the supplemental summons and amended complaint, counsel for all appearing parties had agreed to the addition of the moving defendant on March 22, 2005. Plaintiff further claims that the moving defendant waived its objection to any defect in procedure by participating in discovery without raising the objection. Finally, the plaintiff claims that the moving defendant is a necessary party and should remain a party defendant to this action.

CPLR 1003 provides that a new party may be added to a pending action only "by leave of court or by stipulation of all parties who have appeared once without leave of court within twenty (20) days after service of the original summons or at any time before the period for responding to that summons expires or within twenty (20) days after service of a pleading responding to it." The conditions imposed upon adding a new party to a pending action by CPLR 1003 have been held, repeatedly, to be jurisdictional in nature. The failure to comply therewith thus constitutes a jurisdictional defect warranting dismissal of the claims interposed against the improperly added new party (Public Administrator or Kings County v McBride, 15 AD3d 558, 791 NYS2d 570, and the cases cited therein).

Here, the twenty (20) day "as of right" time limitations period for the filing and service of a supplemental summons and amended complaint expired long before the filing and service of the March 22, 2005 supplemental summons and amended complaint and no leave of court had been obtained prior to that date. Although the plaintiffs claim that all appearing parties had stipulated to the joinder of the moving defendant and the other corporate defendants on March 22, 2005, the date on which the supplemental summons and amended complaint were prepared, the failure to memorialize said agreement by written stipulation, executed by all appearing parties or their counsel prior to the filing of said supplemental summons and amended complaint on March 24, 2005, runs afoul of CPLR 2104 and is insufficient to cure the defect in complying with the condition imposed [*3]upon the addition of new parties by the provisions of CPLR 1003. Equally unavailing is the plaintiffs' reliance on the undated, but obviously after-generated, written stipulation attached to their opposing papers which purports to cure, nunc pro tunc, the failure to obtain the written stipulation of all appearing parties or their counsel. The court rejects the plaintiffs' attempt to cure the jurisdictional defect that occurred upon the filing of a supplemental summons and amended complaint on March 24, 2005 without compliance with CPLR 1003 by submission of a post-factum stipulation such as the one attached to the opposing papers (see, Peterkin v City of New York, 293 AD2d 244, 745 NYS2d 178).

The court has considered the remaining contentions of the plaintiff and finds them to be without merit (Public Administrator or Kings County v McBride, 15 AD3d 558, 791 NYS2d 570, supra ).

In view of the foregoing, the instant motion (#

004) by defendant, Melos Construction Corp., for an order dismissing the plaintiffs' amended complaint to the extent it asserts claims against said moving defendant is granted as the court is without jurisdiction over said defendant.

EDWARD D. BURKE, a.j.s.c.

TO:

Shayne, Dachs, Stanisci,

Corker & Sauer

Attorneys for Defendant Melos

Construction Corp.

250 Old Country Road

Mineola, New York 11501

Christine Malafi, Esq.

Suffolk County Attorney

Attorneys for Defendant County of Suffolk

H. Lee Dennison Building

100 Veterans Memorial Highway

P.O. Box 6100

Hauppauge, New York 11788-0099

Dennis M. Cohen, ESQ.

Attorneys for Defendant Town of Babylon

200 East Sunrise Highway

Lindenhurst, New York 11757