DeFilippo v Knolls of Melville Redevelopment Co.

[*1] DeFilippo v Knolls of Melville Redevelopment Co. 2010 NY Slip Op 52077(U) [29 Misc 3d 1228(A)] Decided on November 30, 2010 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2010
Supreme Court, Suffolk County

MICHAEL DeFILIPPO, Plaintiff,

against

Knolls of Melville Redevelopment Company, OWNERS CORP. I, KNOLLS OF MELVILLE REDEVELOPMENT COMPANY OWNERS CORP. II and ARLEN CONTRACTING CORP., Defendants.



00-21112



CHESNEY & MURPHY, LLP

Attys. For Plaintiff

2305 Grand Ave.

Baldwin, NY 11510

DEVITT, SPELLMAN, BARRETT

Attys. For Defs Knolls of Melville

50 Route 111 Smithtown, NY 11787

KELLY, RODE & KELLY, LLP

Attys. For Def. Arlen Contr.

330 Old Country Rd.

Mineola, NY 11501

Thomas F. Whelan, J.

Upon the following papers numbered 1 to15read on this motion to amend complaint and cross motion for dismissal of the plaintiff's amended complaintNotice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers 4-7; Answering Affidavits and supporting papers 8-9; 10-11 ; Replying Affidavits and supporting papers 12-13; 14-15; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (#

009) by the plaintiff for leave to amend his complaint so as to add claims sounding in common law negligence and violations of § 200 of the Labor Law against defendant, Arlen Contracting Corp., is considered under CPLR 3025(b) and is adjourned to January 14, 2011; and it is further

ORDERED that the cross motion (#

010) by defendant, Arlen Contracting Corp., to dismiss the plaintiff's complaint as barred by the applicable statutory period of limitations or by laches is adjourned to January 14, 2011, for further submissions.

In the fall of 2000, the plaintiff commenced this action to recover damages for the personal injuries he sustained in 1997 while working as a plumber for Acura Plumbing. At the time of the accident, Acura Plumbing was working as a subcontractor for a condominium and/or co-op development project that was owned, operated and/or managed by the Knolls of Melville Redevelopment defendants (hereinafter "Knolls defendants"). When first commenced, this action targeted four, interrelated companies, including the current Knolls defendants, all of whom were owned and/or operated by one, Alvin Benjamin.

Pursuant to a prior order entered herein on July 24, 2007, (Doyle, J), two of the four original defendants were awarded summary judgment dismissing the claims interposed against them due to a lack of ownership and control over the construction site at which the plaintiff's accident occurred. Also dismissed were the plaintiff's claims against the Knoll defendants that sounded in common law negligence and violations of § 200 of the Labor Law. One portion of the plaintiff's claims for recovery under Labor Law § 241(6) against these defendants was, however, continued.

The July 24, 2007 order of Justice Doyle granted the plaintiff's application for leave to serve a supplemental summons and amended complaint so as to join as a new party defendant, Arlen Contracting Corp. (hereinafter Arlen), and to add a claim under Labor Law§ 241(6) against it. In that order, Justice Doyle expressly found that the plaintiff established that his claims against Arlen were not time barred as the elements of the "relation back doctrine" were duly established. In response to the plaintiff's service of his supplemental summons and amended complaint upon Arlen, it appeared by service of its answer in January of 2008. Therein, Arlen asserted several affirmative defenses, including, [*2]that the plaintiff's claims were barred by the three year statute of limitations and by the equitable doctrine of laches.

Following the appearance of Arlen in this action, the plaintiff twice moved to compel its deposition. By order dated August 21, 2010, this court directed that defendant Arlen produce its "key man", Alvin Benjamin, for deposition, since the first witness it produced for deposition had no knowledge of matters relevant to the claims interposed in this action. The record reflects, however, that Alvin Benjamin was not produced as directed by this court due to his purported poor health. Instead, Arlen produced Kent Katter, the son-in-law of Alvin Benjamin. At his deposition, Katter testified that he was employed by Arlen as the general contractor of the construction project at which the plaintiff was injured. He also testified that on the date of the plaintiff's accident, he served as "project superintendent" and in such capacity was on site daily during the construction project. Katter further testified that, while he had no knowledge of the plaintiff's accident until recently, he was responsible for, among other things, on-site supervision of "every aspect of the construction".

By the instant motion (#

009), the plaintiff seeks leave to amend his complaint to include claims for recovery of damages against Arlen which sound in common law negligence and in violations of § 200 of the Labor Law. The basis of this motion is the deposition testimony of Kent Katter and Arlen's response to the plaintiff's served notices to admit. Arlen opposes the plaintiff's motion and cross moves for, in effect, summary judgment dismissing the amended complaint on the grounds that the plaintiff's claims are barred under the applicable three year statute of limitations and by laches. The court shall first consider the cross motion by defendant Arlen, as its determination thereof may render the plaintiff's motion academic.

Easily dispatched as unavailing are Arlen's claims for dismissal of the plaintiff's amended complaint under the doctrine of laches. It is well settled that the doctrine of laches, being equitable in nature, will not bar claims asserted in an action at law such as the instant one (see Town of Huntington v County of Suffolk, ___ AD3d ___, 2010 WL 4117748 [2d Dept 2010]; Stassa v Stassa, 73 AD3d 1157, 902 NYS2d 591 [2d Dept 2010]). Arlen's demands for dismissal of all of the plaintiff's claims, to the extent premised on the doctrine of laches, are thus denied.

Not as easily dispatched are Arlen's demands for dismissal of the plaintiff's amended complaint on the grounds that all of the plaintiff's claims are barred by the three year statute of limitations applicable thereto. These demands are premised upon the following contentions: 1) Arelen's duly pleaded statute of limitations defense remains viable notwithstanding the July 24, 2007 order of Justice Doyle (wherein it was determined that the three year statute of limitations was not applicable due to plaintiff's establishment of the "relation back doctrine") because such order issued prior to Arlen's joinder herein as a party and without notice to it; 2) since Arlen did not have the the opportunity to oppose the plaintiff's 2007 motion, which culminated in the July 27, 2007 order, that order cannot operate as law of the case nor otherwise be considered binding upon Arlen; and 3) the plaintiff' claims are barred as he cannot establish each of the three elements necessary to the proper application of the relation back doctrine.

For the reasons set forth below, this court finds that Arlen's statute of limitations defense is viable and that it should be afforded the opportunity to litigate whether or not the exemption from such defense provided by the the relation back doctrine is applicable to the plaintiff's claims against Arlen.

Statutory and case authorities have long provided that the affirmative defense of the statute of limitations is [*3]waived if not raised by a party possessed of such defense (see CPLR 3211(e); Ferri v Ferri, 71 AD3d 949, 896 NYS2d 890 [2010]; Orix Fin. Servcs. Inc v Haynes, 56 AD3d 377, 867 NYS2d 332 [1st Dept 2008]). Indeed, the Court of Appeals recently stated that a " statue of limitations does not deprive a court of jurisdiction nor even a litigant of a substantive right, but is merely a defense which may, if properly asserted, deprive a plaintiff of any remedy from a defendant" (Windy Ridge Farm v Assessor of the Town of Shandaken, 11 NY3d 725, 864 NYS2d 794 [2008]; quoting, Matter of Romeo v New York State Dep't. of Educ., 41 AD3d 1102, 839 NYS2d 297 [3d Dept 2007]). The prosecution of a time barred claim is thus permissible and the bar of an applicable statutory limitations period should not be raised nor considered by a court absent the assertion of such a bar by its possessor (see Horst v Brown, 72 AD3d 434, 900 NYS2d 13 [1st Dept 2010]; Orix Fin. Servcs. Inc v Haynes, 56 AD3d 377, supra ; Paladino v Time Warner Cable of New York City, 16 AD3d 646, 793 NYS2d 63 [2d Dept 2005]).

The standard for determining a party's right to leave of court to amend its pleading is simply whether the amendment is palpably improper or patently insufficient as a matter of law (see Koenig v Action Target, Inc., 76 AD3d 997, 907 NYS2d 692 [2d Dept 2010]; Lucido v Mancuso, 49 AD3d 220, 851 NYS2d 238 [2d Dept 2008]). If it is neither, leave to amend should be granted unless an adverse party demonstrates that surprise or prejudice will directly result from the amendment (see Koenig v Action Target, Inc., 76 AD3d 997, supra ; Yemini v Goldberg, 46 AD3d 806, 848 NYS2d 676 [2d Dept 2007]). However, in determining whether a proposed amendment is palpably improper or patently insufficient, courts have often considered whether the new claim is barred by an applicable statute of limitations or saved therefrom by an exception such as the relation back doctrine (see Comice v Justin's Restaurant, ____ AD3d ___ 909 NYS2d 670 [2d Dept 2010]; Thomasen v Suffolk County Police Department, 50 AD3d 1015, 857 NYS2d 181 [2d Dept 2008]; Deluca v Baybridge at Bayside Condominium 1, 5 AD3d 533, 772 NYS2d 876 [2d Dept 2004]).

The joinder of new party defendants is governed by CPLR 1003 and CPLR 305, both of which were amended in 1996. Where leave of court is not a condition precedent to the service of a supplemental summons and amended complaint because the amendment is made within the "as of right" time limitations set forth in CPLR 1003 or is made upon the stipulated consent of all of the parties then joined to the action, the proposed new defendant's consent is not required (see Minucci v Franklin General Hospital, 136 AD2d 528, 523 NYS2d 148 [2d Dept 1988]. However, the new party's right to assert defenses in bar, such as the statute of limitations, are preserved (see Hirsh v Perlmutter, 53 AD3d 597, 863 NYS2d 44 [2d Dept 2008]).

Where leave of court is a condition precedent to the joinder of a proposed new defendant, it has been held that the proposed new defendant need not be served with notice of the plaintiff's motion (see Levykh v Laura, 274 AD2d 418, 711 NYS2d 449 [2d Dept 2000]; Eastern States Elec. Contractors, Inc. v William Crow Const. Co., 153 AD2d 522, 544 NYS2d 600 [1st Dept 1989]). Nevertheless, one court declined to determine whether a newly proposed claim was exempt from an applicable statute of limitations under the relation back doctrine where the person possessed of the statute of limitations defense was not before the court (see Levykh v Laura, 274 AD2d 418, supra ). The Levykh court found that the time bar issue was best reserved for later motion practice, if and when, the proposed new defendant appeared after its joinder and raised such defense (id. at 418); cf., Arsell v Mass One, LLC, 73 AD3d 668, 900 NYS2d 380 [2d Dept 2010]; [targeted new defendant already before the court as a third-party defendant]).

This court finds that consideration of whether a proposed new claim is time barred under an applicable statute of limitations should not be part of the calculus in determining the application for [*4]leave to amend unless the time bar defense is properly raised by one possessing it. If the person possessing a statute of limitations defense is not before the court because its joinder as a proposed new party defendant is part of the relief demanded by the plaintiff on its motion to amend, the court should not consider whether the plaintiff's new claims are exempt from a statute of limitations due to the applicability of the relation back doctrine. As the Court of Appeals has observed: "[i]t is one thing to permit an amendment to relate back as applied to parties before the court. It is quite another to permit an amendment to relate back when a new party is sought to be added by the amendment against whom against whom the Statute of Limitations has run" (Liverpool v Averne House, Inc., 67 NY2d 878, 501 NYS2d 802 [1986]; quoting Duffy v Horton Mem. Hosp., 66 NY2d 473, 497 NYS2d 890 [1985]).

That traditional notions of due process and fairness dictate this result is clear (see Lancaster v Town of East Hampton, 54 AD3d 906, 864 NYS2d 537 [2d Dept 2008]). Likewise clear is that the interests of judicial economy will be served and the opportunity for inconsistent decisions will be nullified if the court does not measure the validity of a proposed amendment under the bar of an apparent statute of limitations that is not raised by one possessed of such defense.

Here, the court's July 24, 2007 order (Doyle, J.) determined the applicability of the relation back doctrine when it granted the plaintiff's motion for leave to serve a supplemental summons and amended complaint so as to add Arlen as a party defendant and to assert claims for recovery against it. That prior order contained an express finding that the plaintiff satisfactorily established the three elements of the relation back doctrine. Unfortunately, the court's determination was made without notice to, or participation by Arlen, the non-party at whom the amendment was aimed and against whom the statute of limitations had run. Arlen preserved its statute of limitations defense as the same was set forth in its answer and the validity of that defense had not been raised prior to the interposition of the instant motion and cross motion. Under these circumstances, the court finds that the July 24, 2007 order of Justice Doyle is not binding upon defendant Arlen and that it may challenge the plaintiff's claims as time barred on this cross-motion to dismiss the plaintiff's complaint.

Nevertheless, it would be improvident to blind-side the plaintiff with respect to the merits of the issue of the applicability of the relation back doctrine, as he and his counsel have regarded this issue as conclusively litigated by the terms of the July 24 2007 order and thus not subject to re-visitation by this court. Accordingly, Arlen's cross motion (#

010), which the court denominates as one for summary judgment on its affirmative defense of the statute of limitations, is hereby adjourned to Friday, January 14, 2011, to afford the plaintiff an opportunity to serve and file opposing papers, limited to the issue of the applicability of the relation back doctrine to the claims set forth in his first amended complaint, and for defendant Arlen to reply thereto. The plaintiff's opposing papers must be served on or before December 28, 2010. The defendant's reply papers must be served on or before January 12, 2010.

Also adjourned to January 14, 2011, is the plaintiff's motion (#

009) for leave to amend its complaint. As indicated above, determination of this motion is premature since any such determination may be rendered academic by the decision issued on Arlen's cross motion. No further papers shall be submitted in connection with the plaintiff's motion, as the record is complete with respect thereto.

DATED: __________________________________________________

Thomas F. Whelan, J.S.C.