Ellington v Consolidated Edison, Inc.

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Ellington v Consolidated Edison, Inc. 2008 NY Slip Op 32055(U) July 16, 2008 Supreme Court, New York County Docket Number: 0114712/2007 Judge: Carol R. Edmead Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1 ] SCANNED ON 711812008 - NEW YORK SUPREME COURT OF THE STATE OF NEW YO HOHCAROLEDMEAO PRESENT: COUNTY A PART Justice bplp.y MOTION DATE - v - 0w MOTION SEQ. NO. MOTION CAL. NO. The following papers, numbered 1 to > were read on this motlou to/for PAPERS NYMBERED Notice of Motion/ Order t o Show Cause - Affidavits - Exhibits ... Answering Affidavlta - Exhibits I I F L Replying Affldevits Cross-Motion: d e s 0 No Upon the foregoing papers, It la ordered that thirr motion In accordance with annexed Memorandum Decision, it is hereby 'W ORDERED that the motion by Empire City Subway (Limited) to dismiss the Amended *' ornplaiiit is denied; and it is further , ORDERED that the cross-motion by D & S Restoration, Inc. to dismiss the Amended omplaint is denied; and it is further ORDERED that the branch of the cross-motion by plaintiff for an order (1) declaring the mended Suminons and Complaint deemed filed nuncpro tunc as though it were filed at tbe m e time as the initial summoiis and complaint; (2) excusing the misnomer of iianiing Empire 'ity Subway Company (Limited) as Empire City Subway and permitting amendmeiit of same uncpro tunc and deeiiiiiig the mended summons filed at the same time as the initial summons i d complaint or allowing same to be considered as such nuncpro tunc; (3) that service of the mended Sumnioiis and Complaint establish& personal and subject matter jurisdictioii over all zfendants since the Amended Summons and Complaint was served within the 120 day period :t forth in CPLR 306(b), that it was timely, satisfying the statute of limitations, and that since L Amended Summons and Complaint was filed and served prior to the time for service of an e iswer, leave of the court to amend was not required, and the filing date of the amended Dated: J. S. C. n C h qI < U m F . 0 DO NOT POST SPOSlTlON [* 2 ] summons and complaint relates back to the original summons and complaint; (4)declaring that plaintiff s Amended Summons and Coinplaint did not involve the addition of a new party, but the minor irregularity of a misnomer that was correct by amendment, and thus, dismiss Empire City Subway s motion; ( 5 ) that the Amended Sunmons and Complaint relates back to the original filing of the initial suhiinons and coniplaint pursuant to CPLR 6 203(f) and that the oi-iginal pleading gave appropriate notice to all defendants named in the amended summons and complaint, and D&S s cross-inotion should be dismissed as the Amended Summons and Complaint was filed and served within the Statute of Limitations; (6) that leave of the Court is not required to aniend the summons and complaint and even if it was it is being granted herein nuncpro tunc as there is no prejudice to any defendant; (7) declaring that defendant must answer within 20 days of the court s order or plaintiff can move for default judgment; and (8) that defendants wgrg in no way prejudi-ced by the amendment of the Surn~asad-C~mphintis . granted; and it is further ORDERED that the branch of the cross-motion by plaintiff for an order granting amendment of the Summons and Complaint nuncpro tunc or allowing an extension of time pursuant to CPLR 306(b) to serve the original Summons and Complaint and thereafter allowing an amendment as the Court is allowed to extend the time even without good cause shown, even though there is in the instant matter, in the interest of justice is denied as moot; and it is further , ORDERED that defendant shall serve an answer within 20 days of service of this order and notice of entry; and it is further ORDERED that plaintiff serve a COPY of this order with notice of entry upon all parties within 20 days of entiy. Page 2 of 2 @ K U ENTER: Check one: a FINAL DISPOSITION Check If appropriate: DO NOT POST REFERENCE [* 3 ] Plaintiff, Iiidex No. 1 I47 12-2007 -againstCONSOLIDATED EDISON, INC., EMPIRE CITY COMPANY (LLMITED),WARlEN GEORGE, INC., MITCHELL CONSTRUCTION COW., GREEN ISLE CONTRACTING OF BELLEROSE INC. and D Sr. S RESTORATION, INC., Defendants. e!! q \Nd* % 78% ________________________________________------------------~-__------X HON. CAROL ROBlNSON EDMEAD, J.S.C. MEMORANDUM DECISlON % % r\ Dcfciidant Empire City Subway Company (Limited) ( Empire City Subway Limited") moves pursuant to CPLR 4 321 l(a)(2), (a)(5) and (a)(8) to dismiss the Amended Coiiiplaint and any and all cross-claims agaiiist it 011 the grouiids that the applicable three-year Stalute of Limitations has expired arid plaiiitiff, Rebecca B. Ellington ( plaintiff ), failcd to ob& pcrsonal jurisdictioii over Empire City Subway. timely I Factual B ackgrouiid Plaintiff iiiitially commenced this action agaiiist defendants Consolidated Edison, Inc., Empire City Subway, Warrcn George Incorporated, Mitchell Coiistruclion Co., Green lsle Contracting, hic, and D & S Restoration, Inc. ( D&S ) (collectivcly, defendants ) by filing thc summons and complaiiit 0 1 November 1 1, 2007. Plaintiff later filed an Aiiieiided Summons and Complaiiit on Februaiy 25, 2008, in which Empire City Subway was substituted by Empire City Subway Limited as a party to this action . J [* 4 ] (tlie Amended Complaint ). In this action, plaintiff alleges that on November 1 , 2004, she tripped and fell on a raiscd and uiieveii poi-tion of tlie sidewalk located on tlie south side of 68 Strcct, between Lexington aiid Park Avenue, in Maiiliattan, New Yorlc (Amended Coiiiplaiiit 111144, 48). Plaintill alleges that defendants negligently peiinitted said sidewalk to remain in an iiiisafe and dangerous condition and caused and created the sidewalk lo be raiscd, uneven, and separated (Anicndcd Coiiiplaiiit 111[47,49). Motion bv Eiiipirc City Subway Liii1iled In support of its iiiotion to dismiss, Empire City Subway Liiiiitcd contends that the threc- year Statute of Limitations for plaintiff s tort action under CPLR 9: 214 cxpircd on Novembcr- I , 2007. Tlierefot-e, plaintifl s filing of the Amended Coiiiplaiiit on February 25, 2008 was outsjdc the applicable three-ycar Statute of Limitations. Moreover, plaiiitilf amended the Complaint well after 30 days of filing the initial Complaint. No stipulation to amend thc complaint to add Empirc City Subway Limited was signed or filed. Nor was any iiiotion to amend the Coinplaint filed. Tli~is, Amended the Complaint, filed without leave of the Court and without a stipulation signed by all the parties, is a nullity and is void nb iizitio, As such, the instant Amended Coniplaint filed after the Statute of Liniitatioiis is untiiiiely, a i d does not creale persoiial jurisdiction over Empire City Subway Limited as it violates CPLR 2 14. Since persoiial]urisdiction was iiot timely obtained by plaintiff over Etnpire City Subway Limited, the Amended Coriiplaiiit and all cross claiiiis must be dismissed. 1 Grwii Isle Conh-acting, Inc. was also substiluted by Green Isle Coiilractiiig of Bellrose Inc. 2 5 [* 5 ] Cr9ss-Motioii by Defcndmt D&S Likewise, D&S cross-moves pursuant to CPLR 321 l(a) to dismiss the Amended Coniplaiiit and all cross claims, also 011 the grounds tliat tlic applicable three-year Slatute of Limitations has expired and that plaintiff failed to obtain jurisdiction over D6rS witliiii such period. D&S contends that it received an Amended Suiiiiiioiis and Complaint, bearing a stamp by the New York County Clerk s office dated Fcbruary 25, 2008. According to D&S, it appears that the Anieiided Cornplaint was filed inore than t h e e years after the datc of the alleged accident, and thereroore, the action against D&S is time-barred uiider CPLK 6 2 14. D&S fiirther argues that plaintiff will not be able to establish apriiizcrfucie case of negligence agaiust D&S. hi support, D&S submits an affidavit from its President, Bogban Joldzic, wherein he states that the area in which plaintiff re11 was not an area that was o w w d , opcrated, maintained or repaired by D&S. D&S contends that it had no obligation iinder caselaw or statutory law to iiiaiiitajii tlie arca where plaintiffs accident occurrcd. Since plaiiitill. caiiiiot establish the essential elenleiits of a iicgligeiice claim against D&S, i,c.,a duty to maintain the area, or failure to maintain an area, plaintifi s Amended Complaint must be dismissed. Plaintiffs Opposition and Cross-Motion I opposition, plaintiff contends that lier cause of action arosc on November 1, 2004, n when she sustained her injuries, and that plaintiff filed the Summons and Complaint 011 November 1, 2007. Empire City Subway was named as a defendant in tlie action, based 011 a list of permits plaintiff obtained from thc New York City Deparliiieiit of Transpoi-tation 2 The Court notes that the affidavit is unsigned. D&S contends that it will subiillt an original affidavit 011 the rehim date. 3 [* 6 ] ( DOT ). The list of pelinits showed that a permit was issued by DOT to Empire Cily Subway not Empire City Subway Coiiipany (Limited) to work in the area where plaintiff fcll, prior to her fall. TIILK, plaiiitilf initially sued Empire City Subway. Empire City Subway made no effort to correct the name and identified itself as such. However, when plaintiff attempted to serve Empire City Subway, the Secretaiy of the State of New York rejected the service and was told that the company s official name was Empire City Subway Conipaiiy (Limited) . Therefore, plaintiff filcd the Amended Complaint reflecting Empire City Subway Company (Limited) 011 February 25, 2008 and served same upon the Secretary of State within the 120-day period pursuant to CPLR 9 306(b). It is settled law that as long as service is iiiade within the 120- period, the service relates back to the filing. The amelidinelit did not constitute a new filing for purposes of the Statute of Limitations. Accordingly, plaintiff obtained timely jurisdiction over Empire City Sitbway Limited. Even if Empire City Subway Limited claimed that the aiiiendmeiit conslitutes the addition of a new party, then Empire City Subway failed to properly plead same by failing to set ¬orth that it is proceeding under CPLR 1003, and the niolion to dismiss should bc dismissed on this ground alone. Plaintiffs Amended Complaint did not add Empire City Subway Limited as a new defendant, but merely corrected a minor technical irregularity by adding Company (Limited) . Such minor technical jucgularity should be disregarded, and an amendment should be permitted. Additionally, as Empire City Subway Limited created the confusion, it should not be allowed to escape liability for a misnomer it created. Empire City Subway Limited has made no complaint nor presented any evidence that it was in any way prejudiced by the misnomer. Further, courts have granted extensions of time where the Statute of Limitations would 4 [* 7 ] otherwise bar a claim whcri no prejudice was found. And, liad plaintiff served the initial complaint, plaintiff could have moved at any time to coi-rect the mislabeling, ribiizc pro tirnc, pursuant to CPLR (3: 305(c), even after the Statute of Liiiiitations had ri~ii. Although plaintiff did not request leave lo amend the Coiiiplaiiit pursuant to CPLR 3025(c), the time for Empire City Subway Liiiiited to respond had not commeiiccd and tlicrcfore, had not expired, and service of the Amended Sumiiioiis and Complaint was tiinely since it was made within 120 days 01 filing of tlic original Suminoiis and Complaint. For tlie same reasons, plaintiff argues that it obtained tiinely jurisdiction over D&S, which is iiained exactly tlic same in both the initial and Amended Complaint. As to D&S s inotioii to dismiss, plaintiff argues that D&S has raised no argument that i t has been prejudiced by the aniendmeiit of the suiiiinons aiid complaint. Tlic initial Complaint gavc timely notice lo D&S. As to D&S s motion for summary judgment, such hiotion is premature. No discovery or depositions have been conducted, and D&S predicates its motion 011 an uiisigned and uiiswoni affidavit. Additionally, plaintiff submits a copy of a permit, which shows that D&S was working in tlie area where plaiiilirf [ell, prior to her fall. D&S has not sustained tlie burden for summary judgment and plaintiff has raised triable issues o l h c t as to whether D&S is responsible [or the defect that caused plaintiff s injuries. Therefore, D&S s motion should be dismissed ili its entirety as premature, uiisupportcd with any fiictual proof and contradicted by documentary evidence. Based on the above, plaintiff cross niovcs for an order (1) declaring the Amended Summons aiid Coiiiplaint deemed filed riuncpro 5 ~ U I Z as though C it were filed at the same time as [* 8 ] tlie initial Suminoiis aiid Complaint; (2) excusiiig the misiiomer of iiaiiiiiig Empire City Subway Coiiipaiiy (Limited) as Empire City Subway aiid peiiiiittiiig aiiieiidment of same H W I C pro t w c aiid deeiiiiiig Ihe aiiieiided Suiiiiiioiis filed at the same time as the initial Summons and Coiiiplaiiit or allowing same to bc coiisidercd as such nz~ncpro tutzc; (3) that service of the Ainerided Summons and Coiiiplaiiit establishes persoiial aiid subject matter jurisdictioti over all defc'cndants since tlie Amended Suiiiinoiis and Complaint was served within the 120 day period set foi-th in CPLR 306(b), that it was timely, satisfyiijg the Statule of Limitations, and that since the Amended Summons aiid Complaint was filed and served prior to the time for service of an answer, leave of the court to aiiieiid was not required, and the filing date of the amended suninioiis and coiiiplaint relates back to the arigiiial suiiiiiioiis and complaint; (4) declaring thal plaiiitiffs amended suiniiions niid complaint did not involve the addition of a iiew party, but Ihe minor ii-rcgularity of a iiiisnoiiier that was corrected by aiiiendment, and thus, dismiss Empire City Subway's molioii; ( 5 ) that thc Ameiided Summons and Complaint relales back to the original filing of the inilial Suiiiiiioiis and Complaint pursuant to CPLR 6 203(f) and that the original pleading gave appropriate notice to all defendants named in the Amended Summons and Complaint, arid D&S's cross-motion should be dismissed as the Anieiided Suniiiions and Complaint was filed aiid served within the Statute of Limitations; (6) granting aniendinent of the suiiiiiions and coiiiplniiit izuncpro tunc or allowing an extension of tiine pursuant lo CPLR $ 306(b) to serve the original Suiiiiiioiis and Complaint and thereafter allowing an amendinelit as o the Court is allowed L extend the tjlile even without good cause shown, eveii though there is in the iiistaiit matter, in the interest of justice; (7) that leave of the Court is not required to amend the surnnioiis aiid complaint and even if it was it is being granted herein muicpro tuiic as there is 6 [* 9 ] no prejudice to any defendant; (8) declaring that defendant must answer within 20 days of the Court s order or plaiiitilf can movc for default judgment; and (9) that defeiidaiits were in 110 way prejudiced by the aiiieiidmeiit of thc Suiiiiiioiis and Complaint. Empire Citv s Reply In response, Empire City Subway Limited contends that plaintiff concedes that he did not atteiiipt to serve Empire City Subway with the original pleading containing the ~iiisnomer.While plaintiff asserts CPLR tj 306(b) provides him with u 120-day period to anleiid the complaint as of right without leave of court, CPLR Q 306(b) only provides 120 days to serve a proper complaint and it does not provide that length of time to amend a complaint as of right. CPLR S 3025(a), Iiowevcr, provides that a party may ameiid her complaiiit oiice as a matter of right within 20 days after its service or at aiiy time before the period fbr responding to il expires, or within 20 days alter servicc of a pleading responding to it. The CPLR 4 3025(a) provision for amending thc complaint without leave also appears to bc controlled by the service of the pleading. Since there was no service of the original pleading upon Empire City Subway Limited, plaintiff did not properly file an amended pleading with the Court ofi February 25, 2008 before aiiy service 011 Empire City Subway Limited. Thus, the service oii Empire City Subway Limited o l t h e improperly Aineiidcd Complaint was a iiullity and is void (7h initio and this Court lacks jurisdiction over the Empire City Subway Limited. Because Empire City Subway Limited was not and could not have been made aware oltlie plaiiitifFs attempt to file an action against it within the Statute of Liinitatioiis period, dismissal of the Amended Complaint is warranted aiid plaintiffs crossmotion should be denied. 7 [* 10 ] D&S s Opppsitinii tp Plaintiff s Cross-Motion and ReDly D&S subiiiits a signed affidavit from Bogoban Joldzic, identical to the one annexed to its original cross-motion. With respect to the permit submitted by plaintiff, D&S argues that such ~incerlified work pcnnit laclcs probalive value, would be inadmissible at trial, and thus, docs not reflect any evidence that D&S actually perloniied work in the area mentioned in the permit. Plaiiitiff s Replv to D&S In reply, plaiiitiff argues that D&S cannot present cvidence as part of its reply or affidavit in opposition. Siiice D&S railed to seilre any evidenliary proof with its motion, tlicre is 110 need to shift any burden to plaintiff. D&S s insistence that there was sufficient notice o r its intent to submit a signed affidavit or that there is 110prejudice to the plaintiff does not justify the failure to include admissible evidence with its motion. It is uncontested that the unsigned affidavit is inadmissible. Even i f the affidavit were considcrcd, it would be inadequate lo support the rnolioii since plaintiff raised a question offact as to whether D&S worked in the area where plaintiff fell prior to her Aiia1ysiS Empire City Subway Limited s motion is predicated upon CPLR 8 321 l(a)(S) (statute of limitations), CPLR § 321 l(a)(2) (the court lacks jurisdiction of the subject matter of the cause of action), and CPLR 321 1 (a)(8) (the court laclcs jurisdiction of the person of tlie defendant). It is uncontested that the Statute of Limitations for plaintiffs tort caiises of actioii is three-years from tlie date plaintiffs cause of actioii accrued 011 November 1, 2004 (see CPLli Plaintiff did not subillit a Reply 10 Empire City Subwny Limited s oppositioii papci-s, 8 5 [* 11 ] 2144). Therefore, the Statute of Limitations of plaintiffs tort actioii expired on Noveiiiber 1, 2007. Pursuant to CPLR 304(a), an aclioii is coiiiiiienced by filing a sui-niiions aiid complaint, and is deemed, for Statute of Liiiiitations puiposes, to have been coiiiiiienccd when the siiiiiiiioiis and complaint arc filed with the clerk o r the court ( Westriine Asso. v West fU9th Street Asso., 247 AD2d 76, 677 NYS2d 557 [IstDept 19981; CPLR 5 2102(a)). Here, tlic initial Sumiiions and Complaint, naming Empire City Subway, was timely filed on Novembcr 1 , 2007, witliiii three years from the date of plaintiffs accident. It is the actual filing of a siiiiinions and cornplaint or a suiiiimons with notice which commences the actioii and therefore tolls the Statute of Limitations (De MnriLi v Sinitli, 197 AD2d 114, 610 NYS2d 689 [3d Dept 19941 citing CPLR 4 203[c]). Thus, that plaintiff did not effect proper service of the origiiial Complaint upon Empire City Subway Limitcd did not render the action untimely, Pursuant to CPLR 9 306-b, plaintill then has 120 days to effcct service so as to grant the court jurisdiction (de Vries v Metropofitilrt Tmisit Auth., 11 AD3d 312, 783 NYS2d 540 [ 1 Dept 20041). Thus, in this matter, plaintiff had until Februaiy 29, 2008 to effect service iipoii Empire City Subway in order to grant the court jurisdictioii over said defendant. According to plaintiff, service upon Empire City Subway was rejected, however, by the Secretary of State because the true name of said defendant was Einpire City Subway Coinpany (Limited). The Court notes that ameiidments to the caption are permitted where the correct party defendant lias been sewed with process, but under a misnomer, and where the misnoiner could not possibly have inisled the defendant coiiccniiiig who it was that the plaiiitilf was in f i x 1 The following aciioiis must be conunenced within t h e e years: . . . 5. an action to recover damages for a persorial injui-y . , . . 9 [* 12 ] seeking to sue (Air Tite Mfg., Iizc. v Acropolis Asso., 202 AD2d 1067, 612 NYS2d 706 [ 1 Dept 19941 [peiiiiitting anieiidiiient to caption where defendant, a partnership, was improperly iiaiiied as a corporation and it defended in its capacity as a pai-tiiership, where such niisiioiiier in the caption was an obvious mistake and its corrcction did not prejudice defendant], citing Crecitive Ccibitzet Corp. v Fzitzire Visions Coniputer Store, 140 AD2d 483, 484-4853). Contrary to Empire City Subway Limited s contention, the Aiiieiided Coiiiplaiiit did 1101 add it as a iicw party to the action. When plaintiff filed the Amended Complaint on February 25, 2008 reflecting Empire City Subway Coiiipaiiy (Limited) , the Amended Coiiiplaiiit siiiiply superceded the original Complaint. The real issue presented by the plaintiff is not that the amendment was iiiade prior to the commencemcnt of tlie action. The real issue is the apparent gap not expressly addressed in thc CPLR when an action is propcrly commenced by the filing of a suinnions and complaint, and an amendment to that pleading is sought prior to proper service of thc pleading. As to amending the pleading to correct the name of a party, CPLR 6 3025(a) permits a plaintiff to amend the pleading once without leave of court withili twenty days after its service, or at wiy time before theperioclfor respondiiig to it expires,or withiii twenty days after service of a pleading responding to it (emphasis added) (see also Nikolic v Federation Employnretit atid Guiclcince Service, Inc., 18 AD3d 522, 795 NYS2d 303 [2d Dept 2005l). The clear purpose o r this [rule] is to allow parties to recognize and correct pleading errors without burdeniiig themselves, their opponents or tlie courts with iiiotioii practicc (Slzoloin d Zuckerbrot Reiillwv Corp. v Coldwell Bcliiker Coriiiiiercirzl Group, l i i c , , 138 Misc 2d 799, 525 N Y S 2 d 541 [Sup Ct New York County [ 19881 [CPLR fj 3025(a) allows a party to aiiieiid a pleading withoul leave of 10 [* 13 ] court, so long as he does so within twenty days attcr it is scived, before any responsivc plcading is diie, or within tweiily days after a responsive pleading is served]). Thus, plaintiff could ameiid her Coiiiplaint without leave of court (1) within 20 days after its service, (2) at any time befol-c Empire City Subway Liiiiited s t h e to respond to it expires, or (3) within twenty days after service of a pleading respoiidiiig to it. Rcre, p1aintifFs service o r the pleadibg i. e., the original Complaint, upon Empire City Subway Limited was a nullity because it was rejected by its agent, the Secretary o r Slate. T ~ L I S , service of the Coiiiplainl was never effectuated, so as to trigger plaintiffs time to amend under the first option ( within 20 days after its service ). Further, plaintiff s time to aiiieiid the Complaint was not triggered under the second option ( at any time bcfore the period Tor responding to it expires ), since defcndant s time lo respond to it has yet to expire. In other words, since Empire City Subway Limited s time to respond to lhe Complain1 never expired, the twenty-days within which plaintiff must amend the Complaint without leave of court never expired. Moreovcr, even if the Court did not deem the service of thc original Coiiiplaint a nullity, plaintiff would still have twenty days aftcr scrvice of Empire City Subway Limited s pleading responding to it, pursuant to the third option, which has yet to O C C L As. Empire City I~ Subway Liiiiited never respoiided to tlle Complaint, the plaintiffs time to amend iicver lriggercd under the third option. The Court hotes that the record indicates that D&S served an Answer lo the Aiiieded Complaint. Howevcr, the fact that D&S served an Answer to the Amended Complaint does not warrant a dilfereiit result given that D&S rests 011 the arguments made by Empire City Subway Limited. Moreover, the same effect of CPLR 3025(a) applies, in that plaintiffs time to amend as 11 [* 14 ] of right is triggered oiily upon (1) service of tlie origiiial Coiiiplaint and (2) service of a pleading in rcspoiise to the original Complaint, none of which applies here. Therefore, plaintiffs service of the Amended Complaint on February 26, 2008 did not violate either the express terms of CPLR S 3025, which is triggered upon proper service, or the purpose of CPLR $ 3025, which is to avoid uiuiecessary inotioii practice. The law is scant on this issue. ? his Courl found one case from 1988, which also involved a plaintiffs alleged hilure to coiiiply with the time restrictions of CPLR 3025. Slioloni & Zuckerbrot Realty Corp. v Colclwell Bunker Corizinercicrl Group (138 Misc 2d 799, 525 NYS2d 541 [Sitpreme Court Queens County 1988]), likewise involved the issue of whether a plaintiff is required to obtain leave of court before serving the amended complaint. Before the Court was a CPLR 321 I(e) motioli lo dismiss the coiiiplaiiit in an action to collect a brokerage commission. After citing to CPLR 3025(a), tlie Court noted that the clcar purpose of this section of the CPLR is lo allow parties to recognize and corrcct pleading errofs without burdening themselves, their opponcnts or tlie courts with iiiotion practice. The defendant requested aiid receivcd an extension of time to respond or move with respect to the complaint. On the last day of the exteiisioii period, defendaiit niovcd to dismiss the complaint, for failure to state a cause of action. Three days later, the plaintiff served an amended coiiiplaint to rectify the claiiiied dcficiencies in the complaint, and argued that this aiiiendnieiit was available as of right uhder CPLR 3025(a), aiid reiidcred the inotlon moot. Defendant has rejccted tlie amended complaiiit, and argued that once it has iiioved to dismiss, the arhendment as ofright is no longer CPLR 321 l(e) allows a party to respond to a CPLK 321 l(a)(7) inotiori disnliss a plcading Lor fuilure to state a cause of action or defense by 1-cqutstingleave to plead again. 12 [* 15 ] available, and plaintiff iiiust meet the more stringent test of CPLR 32 1 l(e). In rejecting defcndant s argument, the Court stated that CPLR 32 1 l(e) should not be read so as to obviatc the availability of an ainendiiieiit as ofright under CPLR 3025(a). To do so would be to frustrate the iiiteiit of CPLR 3025(a) to allow some leeway to a pleader who acts expeditiously to coil-ect his pleading. Since the defeiidant s motion to dismiss had the erfect o r extending its tiiiie to aiiswer the complaint, the plaintiff s amendment was tiiiiely. The plaintirf was not reqiiired to oblain leave of coiirt before serving the amended complaint. Since the defendant s motion to dismiss had the effect of extending its tinic to answer lhe complaint, the Court concluded thal the plaintiffs aiiiendiiieiit was timely, and that the plaintiff was not I-cquired to obtain leave of court before serving the aiiieiided complaint, While Enipirc City Subway Limited coiltends that no stipulatioii or motion to aniend was iiled, such requirements are iiecessitated only where plaintiff s service of the pleading has been effectuated. Since the origiiial Coiiiplaint was never served upon Eiiipirc City Subway Limited, dcfendarits timc to aiiswcr tlic Coiiiplaint, iicvei- triggered, and was effectively extended uiitil such service was made (see Olseri v 432 E m t 57th Street Corp,, 145 Misc 2d 970, 548 NYS2d 864 [Supl-cnie Coui-t New York County 19891 [ The first respoiisive pleading required o r tlic defendant . . . is its answer, which is not required to be served uiitil aftcr the complaint has been ~ e r v e d ] ) .Therefore, plaintiff was not required to seek leave from the Court, or obtain a ~ stipulation to aiiieiid the Coiiiplaint prior to its filing o r the Amended Suniinoiis and Complaint. Pursuant to CPLR $ 203(f), a claim assertcd i n an amended pleading is deemed to havc 6 CPLR 3012(a) provides in pait: The coniplajiit may be seived with the suiimons .... Service of an aiiswcr or reply shall be made within twenty days after service o r the pleadiiig to which it responds . Under CPLR 301 1 I I plaintiffs initial plendiiig in ai1 nctioii is the complaint, not the stiiimions with notice sei-ved without the complaint. 13 [* 16 ] bceii interposed at the time tlie claims in tlie original pleading were interposed, unless tlie origiiial pleading does not give notice of thc transactions, occuwciices, or sel-ics o r transactions or OccLirrciicss, to bc proved pursuant to the aiiieiided pleading. As the original Complaint and Amelided Complaint contniii ideniical Factual allegations and causes of action, tlic Complaint S provided sufficient notice of the transactions and O C C U I - I - C I ~ C ~ giving rise to the causcs of aclion in the Amended Complaint. Notably, there is no indication that Empire City Subway is an entity different from Empire City Subway (Limited). Therefore, the Amendcd Coiiiplaint is dcemed interposed or comnienced as of the date of filing of the original Complaint, and thereIobre, is timely. Furthei-more, plaintiffs service of tlie Amended Coiiiplaint upon Empire City Subway Limited on February 26, 2008, was timely, as it was servcd within 120 days after the original Complaint and Amended Cornplaint were filed. While late service is peiinissible under CPLR 306-b upon good cause shown or hi the iiitercst ofjustice (Spa117 v Z~rclc, AD3d 410, 829 36 NYS2d IC) [lS Dept 2007]), the service ofthe Amended Complaint was timcly. Therefore, the Court also does not reach tlie issue of whether plaintiff established good caLise, or whether in the interest ofjustice, late service o r the Amelided Complaint should bc permitted. As such, leave to permit late service pursuant to CPLR 30641 of sanic is not required. Thereforc, the motion by Empire City Subway Limited and cross-motion by D&S to dismiss tlic Amended Complaint 011 tlie groLmd of Statute of Liniitatioiis lack merit and are denied. As to D&S s iiiotioii for summary judgment, it is well settled that where a defendant is the proponent of a inotioii for summary judgment, the defendant must establish that the cause of 14 [* 17 ] action I I . has no iiierit (CPLR 6 321 2[b]), sufficient to warrant the coui-&as a matter of law to direct judgment in his or her hvor (Bzulr v St. Cluirc s H o ~ p .82 NY2d 738, 739 [1993]; , PViiregi-trclvNew Yoi4 U i v Merl. Cfr.,64 NY2d 851, 853 [1985]; Wright v Ndiottnl ii. Ai~zzrsei~rciits, 2003 NY Slip Op 51390 [Sup Ct New York County, Oct. 21, 2003J). This Iric., standard requires that the proponent of a motion loor siiiniiiary judgnicnt make api*inzafiicie showing of entitlement to judgment as a matter of law, by advancing suIficient evidentiary proof in admissible fonn to deiiioilstrale the absence of any material issues of [act ( Wiizegrad v Nt.w York Uiiiv. Med Ctr.)64 NY2d 851, 853 [19&5]; Zuckerinan v Ct ofNew York, 49 NY2d 557, iy 562 [1980]; Silveritmi v Perlbitzcler, 307 AD2d 230, 762 NYS2d 386 [l Dept 20031; Tlioiiias v Holzberg, 300 AD2d 10, 11, 751 NYS2d 433, 434 [ l Dept 20021). Thus, the motion must be supported by affidavit [horn a person having lciiowledge of the facts], by a copy of the pleadings and by other availablc proof, such as depositions (CPLR 5 3212 (b)). Thc moving paiqy milst demonstrate entitlement to judgnieiit as a matter of law (Zzickeriuujz v City oj New Yorlc, 49 NY2d 557, 562, 427 NYS2d 595; Silliiiciri v Tweritietli Century-Fox Filiii Corp., 3 NY2d 395, 165 NYS2d 498), and the failurc to niakc such a showing will result in the denial of the motion, regardless of the sufficiency of the opposing papers (Pqpalurdo v New York Ilealth & R~icquel Club, 279 AD2d 134, 718 NYS2d 287 [lstDept 20001 CitingLesocovich v 180Muclison Ave. Cory., 81 NY2d 982, 985, 599 NYS2d 526; kViriegriid v New York Utiiv. Mecl. Ctr., 64 NY2d at 85 3 , sup rn ) , It is mcontcsted that the motion by D&S is supported solely by an uiisigiied and iiiiswoiii affidavit and an attorney s affmnation. Absent an affidavit from D&S s Presidciit or otheiemployee with knowledge of the material facts, this evidence was not in admissible form (see 15 [* 18 ] Regent Corp., U.S.A. v Azinnt Bnnglndesh, Ltcl., 253 AD2d 134,686 NYS2d 24 [l" Dept 19991). The failure of D&S to establish its right to suinmaryjiidgrneiit as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (see Diclz 1' Nicizez, 5 AD3d 302 [ 1st Dept 20041 [motion for summary judgment shoirld have been denied reprdless of the sufficiency of plaintiffs opposiiig papers]). hi any event, the copy of tlic work permit submitted by plaintiff raises an issue of fact as to whether D&S actiially perfoiined work in thc locatioii of plaintill's lall, That the worlc peiiiiit is uiicertified is not fatal to plaintiff's ability to use such docuiiieiil to raise an issue of h c t under the circunistanccs. It is premature, at this juncture, in h e absence of fiirther discovery and depositions, to coiiclude that D&S did not perform work at the subject accident location as a matter of law. Therefore, the Court does not reach the merits of plaintiffs opposing contentions. Co iic lusi011 Based 0x1 the foregoing, it is hereby ORDERED that the motion by Empire City Subway (Limited) to dismiss the Amended Complaint is denied; and it is further ORDERED that the cross-motion by D & S Resloratioii, Inc. to dismiss tlie Amended Complaint is denied; and it is fiirther ORDERED that the branch of the cross-motion by plaintiff lor an order (1) declaring tlie amended Summoqs and Complaint deemed filed t1wtcpt-o h n c as though it were filed at the same time as the initial suninions and complaint; (2) excusing the misnomer of naming Empire City Subway Company (Limited) as Empire City Subway and peiiiiittiiig amendment of same 16 [* 19 ] iiziiic pro tuiic aiid deeming the amended siiniiiioiis filed at the same time ;.IS the initial suniiiioiis and coiiiplaiiit or allowing same to be considered as such nuiicpro turzc; (3j that servicc of the ameiidcd Suiiiiiioiis and Coiiiplaint establishes personal and subject matter jurisdiclion over all defeiidaiits since the Amended Sutiinioiis and Complaint was served witliiii the 120 clay period set forth in CPLR 306(bj, that it WBS timely, satislying the statute of limitations, and that since the Amended Summoiis and Complaint was filed mid served pi-ior to the time for service of an answer, leave oftlie court lo amend was iiot rcquired, and the filing date of the aiiiendcd siiiniiioiis and complaint relates back to the original Suninions and Complaint; (4)declaring that plaintiffs Amended Summons aiid Complaint did not involve the addition of a new party, but the niiiior irregularity of a misnomer that was correct by amendmciit, and thus, dismiss Empire City Subway s motion; ( 5 ) that the Amended Summons aiid Complaint relates back to the original filing of the initial suiiiiiioiis and coinplaint pursuant to CPLR $ 203(f) and that the original pleading gave appropriatc notice to all defendants named in the amciidcd siiniiiioiis and complaint, and D&S s cross-motion should be dismissed as the Amended Summons aiid Coiiiplaiiit was filed aiid served within the Statute of Limitations; (6) that leave of the Court is riot required to amend the sLiiimoiis and complaint and eveii if it was it is being granted herein I I U I Z C ~ Y tunc O as there is no prejudice to aiiy defendant; (7) declaring that defendant must answer within 20 days of the court s order or plaintiff can move for default judgment; apd (8) tlat defendants were ia no way prejudice4 by the amelidmelit of the Summoiis and Complaiiit is granted; aiid it is firrther 17 [* 20 ] ORDERED that the branch of thc cross-motion by plaintiff for an order granting pro amendment of the Summons and Complaint I Z U ~ Z C turzc or allowing an extension of time piirsuaiit to CPLR 306(b) to serve the origiiial Summons and Complaiiit and thereafter allowing an amendment as the Court is allowed to extend the time even without good caiise shown, even though there is in the instant matter, in the interest ofjustice is denied as moot; aiid it is fiirlher ORDERED that defendant shall seive ai1 answer within 20 days of service of this order and iioticc o r entry; and it is fui-ther O m E R E D that plaintiff serve a copy of this order with notice of entry upon all parties within 20 days of ciitry. This coiistitutes the decisioii and order of the Court. Dated: July 16, 2008 I' 18 Hon. Carol Robinson Edmead. J.S.C.

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