Martes v Brenner
Annotate this CaseDecided on March 10, 2008
Civil Court of the City of New York, New York County
Margarita Martes, Plaintiff(s)/, Petitioner(s),
against
Paul S. Brenner, Defendant(s)/, Respondent(s).
005749 CVN 2002
Manuel J. Mendez, J.
Plaintiff, Margarita Martes, seeks an Order granting leave to amend the caption of the summons and complaint to substitute, Illiana Mendez as plaintiff, approximately six years after commencement of the action.
Defendant appeared at the calendar call of this matter and opposed the motion
asserting Illiana Mendez did not in any manner authorize the named plaintiff,
Margarita Martes, to act as her agent or provide other authority to commence this action.
Defendant further asserts the statute of limitations has expired and by allowing the substitution at
this late date, the action has already been placed on the trial calendar, would severely prejudice
the defendant.
This matter had been scheduled for a bench trial on January 24, 2008, it was adjourned to April 1, 2008.
The statute of limitations provides the time period in which a claim may be brought by a person of ordinary diligence. The periods provided represent what the legislature deems are a sufficient period. See Siegel, NY Practice (4th Edition), §33, 41-42. It is well established that the statute of limitations period is in place to provide fairness to defendants, such that a [*2]reasonable expectation could be had that older obligations are erased and it would not be necessary to provide a defense where, "evidence has been lost, memories have faded, and witnesses disappeared." Duffy v. Horton Memorial Hosp., 66 NY2d 473, 488 NE2d 820, 497 NYS2d 890 [1985], citing to Flanagan v. Mount Eden Gen. Hosp.. 24 NY2d 427. Also the statute of limitations is in place to prevent the judicial system from being burdened by " adjudicating stale and groundless claims." Duffy v. Horton Memorial Hosp., 66 NY2d 473, supra .
Conversion is defined as, "An unauthorized assumption and exercise of the right of
ownership over goods or personal chattels belonging to another to the exclusion of
the owner's rights." BPD International Bank v. Petitto, 15 Misc 3d 1147(A), 841 NYS2d
825, citing to, Black's Law Dictionary, 5th Edition. A cause of action for conversion
begins to accrue from the date the conversion takes place. When the original possession was
lawful, a cause of action accrues after a demand and refusal to return the property. D'Amico
v. First Union National Bank, 285 AD2d 166, 728 NYS2d 146 [N.Y.A.D. 1st Dept. 2001]. A
single act or default may create differing causes of action based upon different liabilities and are
subject to more than one statute of limitation. Green v. Emanuel African Methodist Episcopal
Church, 278 AD2d 132, 718 NYS2d 324 [N.Y.A.D. 1st Dept. 2000]. Conversion may apply
to either a claim in tort which has a three year statute of limitation or contract which has a six
year statute of limitation,CPLR §214(3) or CPLR § 213(2). Conversion has been
found to apply to claims involving the misappropriation of money. In applying the statute of
limitations, if two remedies are available, the plaintiff may proceed under either theory and the
longer statute of limitations will govern. BPD International Bank v. Petitto, 15 Misc 3d
1147(A), supra .
CPLR §1021 states,
"A motion for substitution may be made by the successors or representatives
of a party or by any party. ..If the event requiring substitution occurs before
final judgment and substitution is not made within a reasonable time, the
action may be dismissed as to the party for whom substitution should
have been made, however such dismissal shall not be on the merits unless
the court shall so indicate..."
The determination of what constitutes a "reasonable time" involves several factors, including diligence of the party seeking substitution, potential prejudice to the other parties, and a meritorious defense. See McDonnell v. Draizin, 24 AD3d 628, 808 NYS2d 398 [N.Y.A.D. 2nd Dept, 2005] .
There are very limited situations which allow amendment to the pleadings subsequent to the running of the statute of limitations. Pursuant to CPLR § 1018, it would require a transfer of interest or assignment of rights and the application of the "relation back" theory. [*3]Bellini v. Gersalle Realty Corp., 120 AD2d 345, 501 NYS2d 674 [N.Y.A.D. 1st Dept., 1986] and HSBC Guyerzeller Bank AG v. Chascona N.V., 42 AD3d 381, 841 NYS2d 11 [N.Y.A.D. 1st Dept., 2007].
This is an action seeking to recover bail money that plaintiff claims was converted by an employee of the defendant per his directions. Plaintiff Margarita Martes, filed Answers to defendant's interrogatories on September 18, 2002, wherein she stated the claim arose on September 16, 1997. The statute of limitations for conversion in this action would expire six years after the claim arose, on September 16, 2003. The motion papers indicate Margarita Martes commenced this action on February 19, 2002, because Illiana Mendez was, "not available at the time," with no further explanation for the delay in seeking substitution until well after the six year statute of limitations had run. There has been no demonstration of a transfer of rights or assignment from Illiana Mendez to Margarita Martes, at any time prior to or during the course of this litigation. To allow the amendment of the action to substitute Illiana Mendez as plaintiff subsequent to the running of the statute of limitations and on the eve of trial would be prejudicial to the defendant.
Accordingly, the plaintiffs's motion by Order to Show Cause to amend the caption to reflect Illiana Mendez as the name of the plaintiff, is denied.
The foregoing shall constitute the Decision and Order of the Court.
Dated: March 10, 2008
MANUEL J. MENDEZ
Judge, Civil Court
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