Savino v ABC Corp.

[*1] Savino v ABC Corp. 2008 NY Slip Op 52672(U) [23 Misc 3d 1102(A)] Decided on March 30, 2008 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 30, 2008
Supreme Court, Richmond County

Joseph Savino AND SUSAN SAVINO, Plaintiff(s),

against

"ABC Corporation" a fictitious name intended to identify the corporation formally known as RICHMOND OUTDOOR ADVERTISING COMPANY, S & E LANDHOLDING, INC., LEONARDO GIORDANO, and GIUSEPPE EMANUELLE, MAXALEAH INCORPORATED, RICHMOND OUTDOOR ADVERTISING COMPANY, DIVISION OF MAXALEAH INCORPORATED and MICHAEL McDONOUGH, Defendant(s).



13340/1999

Judith N. McMahon, J.

On November 2, 1996, the plaintiff allegedly sustained injuries when he slipped and fell on a bolt in the parking lot located at 1880 Hylan Boulevard, Staten Island, New York. On October 26, 1999, plaintiff commenced this action by filing a summons and complaint against defendant ABC Corporation, S & E Landholding, Inc., Leonardo Giordano, and Giuseppe Emanuelle. About six years later, on January 5, 2007, the defendant S & E Landholding commenced the third party action against Maxaleah Incorporated, Richmond Outdoor Advertising Company, Division of Maxaleah Incorporated and Michael P. McDonough. The third party's answered on or about March 2, 2007. Over one year later the plaintiff sought to add the third party defendant's as defendants in the main action and served an amended complaint, without leave of court, on or about March 18, 2008. Third-party defendant's then answered on or about April 11, 2008, with the statute of limitations claimed as an affirmative defense. [*2]Defendant's Maxaleah Incorporated, Richmond Outdoor Advertising, Division of Maxaleah Incorporated [hereinafter "Maxaleah"] now brings this motion to dismiss, inter alia, pursuant to CPLR 3211(a)(5), on the ground that the statute of limitations has expired. Further, defendant S & E Landholding is separately moving for summary judgment on plaintiff's complaint.

I.Defendants/third-party defendant's motion to dismiss [Motion 009]

Generally, pursuant to CPLR § 305(a), the plaintiff may add additional parties without leave of the court if they do so within 20 days after the defendant's service of the answer. Here, while the plaintiff did add the new third party defendants within 20 days of third party defendant's answer, leave of Court is required because the original statute of limitations has now expired (Siegel, David, D., New York Practice, § 65 [2005]). In this instance, the third-party defendant Maxaleah may be added as a direct defendant only if plaintiff qualified for the relation back doctrine.

CPLR § 214 provides the statute of limitations for negligence actions as three years and clearly plaintiff's commencement of the action against Maxaleah over six years after the incident violates the statute of limitations. However, CPLR § 203(f) dictates the relation back doctrine, namely, "for limitation purposes a claim in an amended pleading will be deemed to relate back to the time the claim in the original pleading was interposed as long as the original one gives notice of the transaction or occurrence out of which the claim in the amended pleading arises" (Siegel, David, D., New York Practice, § 49 [2005]). The relation back doctrine "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are united in interest'" (Buran v. Coupal, 87 NY2d 173, 177 [1995]; see Holster v. Ross, ___ AD3d ___, 2007 NY App. Div. 11846 [2d Dept., 2007]; Siegel, David, D., New York Practice, § 49 [2005]).

The plaintiff must meet a three prong test to qualify for relation back; "(1) both claims [must arise] out of the same conduct, transaction or occurrence, (2) the new defendant is united in interest with the original defendant, and (3) the new defendant 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 him or it as well" (Holster v. Ross, ___ AD3d ___, 2007 NY App. Div. 11846 [2d Dept., 2007]; Buran v. Coupal, 87 NY2d 173 at 177; Davis v. Larhette, 39 AD3d 693, 693-94 [2d Dept., 2007]). Parties are deemed to be "united in interest when their interests in the subject matter is such that they will stand or fall together with respect to the plaintiff's claim" (Xavier v. RY Management Co., ___ AD3d ___, 2007 NY App Div. 11827 [2d Dept., 2007]). However, "[o]nce a defendant has demonstrated that the statute of limitations has expired, the burden is on the plaintiff to establish the applicability of the relation back doctrine" (Cardamone v. Ricotta, 47 AD3d 659, 660 [2d Dept., 2008]; Nani v. Gould, 39 AD3d 508, 509 [2 Dept., 2007]) and it is axiomatic that the plaintiff establish"notice to the new defendant within the applicable limitations period [as notice] is the linchpin' of the relation-back doctrine" (Shapiro v. Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444 [2d Dept., 2007][emphasis added]; quoting Brock v. Bua, 83 AD2d 61, 70 [2d Dept., 1981]).

Here, the third party defendants Maxaleah have successfully established that the statute of limitations for purposes of timely commencing a claim against it had expired over six years prior to plaintiff's subsequent commencement of the action (CPLR § 214). In opposition, the plaintiff has failed to establish that the claims should relate back to the timely commenced original action. [*3]In fact, plaintiff does not assert any defense in their opposition papers claiming the commencement should relate back and as such the claims by plaintiff to amend the original summons and complaint to include third party defendants are properly dismissed.

The Court notes that in addition, but merely academic, plaintiff would have failed to establish that third party defendant Maxaleah "knew or should have known" this action would be brought against it, as no evidence suggests that it was aware of any accident or lawsuit before the statute of limitations expired (Shapiro v. Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d at 444). As such, defendant's Maxaleah's motion to dismiss is granted and all claims against it by the plaintiff are dismissed as untimely.

It is also noteworthy that plaintiff's fictitious "ABC Corporation, a fictitious name intended to identify the corporation formerly known as Richmond Outdoor Advertising Company" does not satisfy notice to third-party defendant's Maxaleah. In fact, CPLR § 1024 which allows cases to proceed against unknown parties, does in fact require timely efforts to name the correct party prior to the expiration of the statute of limitations (Scoma v. Doe, 2 AD3d 432, 433 [2d Dept., 2003][finding that "the Supreme Court properly denied the plaintiff's motion pursuant to CPLR 1024 to substitute Rich Pastecchi in place of the fictitious "John Doe" defendant since the plaintiff failed to prove that he made timely efforts to identify the correct party before the statute of limitations expired]). Plaintiff provides no evidence that they even attempted to identify the correct entity and further waited over one year after the third party action was commenced to even amend the original complaint to add the third party defendants as direct defendants.

With respect to the claims brought by the third party defendants S & E Landholding, the statute of limitations for indemnification claims is six years (CPLR § 213). Furthermore, "indemnification claims generally do not accrue for the purpose of the Statute of Limitations until the party seeking indemnification has made payment to the injured person. This principle stems from the nature of indemnification claims and does not vary according to the breach of duty for which indemnification is sought" (McDermott v. The City of New York, 50 NY2d 211 [1980]; Union Turnpike Associates, LLC v. Getty Realty Corp., 27 AD3d 725, 727 [2d Dept., 2006][finding that indemnification claims accrue when payment is made on the underlying obligation for which indemnity is sought]; Loscalzo v. Lupinacci, 275 AD2d 349 [2d Dept., 2000]).

As a result, third party defendant Maxaleah's motion to dismiss is denied as against third party plaintiff's S & E Landholding. Specifically, the third party complaint alleges claims sounding in indemnification were commenced prior to any liability or payment on behalf of third party plaintiffs and as such the statute of limitations has yet to accrue.

II.Defendant/Third Party Plaintiff S & E Landholding's motion [Motion 010]

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the [*4]party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In a slip and fall case, the plaintiff must establish that the defendants either created the condition or had actual or constructive notice of the condition with a sufficient period of time to remedy it (Gordon v. Am. Museum of Natural History, 67 NY2d 836 [1986]; Danapas v. Temco Serv. Indus. Inc., __ AD3d ___, NY Slip Op 1604 [2d Dept., 2009]; Sanchez v. Barnes & Noble Inc., ___ AD3d ___ NY Slip Op 1463 [2d Dept., 2009]).

Here, the plaintiff has failed to oppose the defendant's prima facie showing of entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). As a result, summary judgment is appropriate dismissing plaintiff's complaint against defendants S & E Landholding Inc., Leonardo Giordano and Giuseppe Emanuelle.

Accordingly, it is

ORDERED that the third party defendants Maxaleah, Inc., d/b/a Richmond Outdoor Advertising Company, s/h/a Maxaleah Incorporated and Richmond Outdoor Advertising Company, Division of Maxaleah Incorporated's motion to dismiss plaintiff's amended complaint as against it is hereby granted, and it is further

ORDERED that the plaintiff's complaint is dismissed as against third party defendant's Maxaleah, Inc., d/b/a Richmond Outdoor Advertising Company, s/h/a Maxaleah Incorporated and Richmond Outdoor Advertising Company,Division of Maxaleah Incorporated, and it is further

ORDERED that the third party defendants Maxaleah, Inc., d/b/a Richmond Outdoor Advertising Company, s/h/a Maxaleah Incorporated and Richmond Outdoor Advertising Company, Division of Maxaleah Incorporated's motion to dismiss the third party complaint is hereby denied, and it is further

ORDERED that defendant's S & E Landholding Inc., Leonardo Giordano and Giuseppe Emanuelle's motion for summary judgment is hereby granted, and it is further

ORDERED that plaintiff's complaint is hereby dismissed as against S & E Landholding Inc., Leonardo Giordano and Giuseppe Emanuelle, and it is further

ORDERED that all other relief requested is hereby denied, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: March 30, 2008E N T E R, [*5]

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court