Nationwide Mut. Ins. Co. v Castle Oil Corp.

[*1] Nationwide Mut. Ins. Co. v Castle Oil Corp. 2013 NY Slip Op 51478(U) Decided on September 9, 2013 Supreme Court, Westchester County Connolly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2013
Supreme Court, Westchester County

Nationwide Mutual Insurance Company as Subrogee of VICTORIA SUBIN, Plaintiff,

against

Castle Oil Corporation and DYNAMIC PLUMBING AND HEATING INCORPORATED, Defendants.



63388/2012



Law Offices of Epstein, Gialleonardo & Rayhill

Attorneys for the Plaintiff

565 Taxter Road, Suite 275

Elmsford, NY 10523

By: NYSCEF

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

Attorneys for the Defendant Castle Oil

150 East 42nd Street

New York, NY 10017-5639

By: NYSCEF

Harris, Conway & Donovan, PLLC

Attorneys for the Defendant Dynamic Plumbing

The Patroon Building

5 Clinton Square

Albany, NY 12207

By: NYSCEF

Francesca E. Connolly, J.

In this subrogation action, the defendant Castle Oil Corporation (hereinafter referred to as Castle Oil) moves for an order pursuant to CPLR 3212 for summary judgment dismissing the plaintiff's complaint on the grounds that Castle Oil owed no duty to maintain plaintiff's heating system, that the contract between Castle Oil and the plaintiff specifically excluded damages resulting from "puffbacks," and that Castle Oil cannot be held vicariously liable for the work of a subcontractor.

The plaintiff, Nationwide Mutual Insurance Company, as subrogee of Victoria Subin (hereinafter referred to as Nationwide and Subin), opposes the motion on the ground that questions of fact exist concerning the terms of any contract between Castle Oil and Subin, the scope and nature of the work performed on the Subin heating system by Castle Oil and its subcontractor, Dynamic Plumbing and Heating Incorporated (hereinafter referred to as Dynamic Plumbing), and the nature of the relationship between Castle Oil and Dynamic Plumbing. Nationwide also maintains that the motion for summary judgment is premature in that depositions, which have not yet been conducted, are needed to resolve the existing questions of fact.

Dynamic Plumbing moves to dismiss the plaintiff's complaint pursuant to CPLR 3211 (a) (5) and 214 (4) based upon the expiration of the statute of limitations. Nationwide opposes the motion contending that the action was timely commenced, as the accrual date extended beyond February 9, 2010, the date of the puffback incident, and further, that Dynamic Plumbing and Castle Oil are united in interest and therefore, the commencement date for Dynamic Plumbing relates back to the date the action was commenced against Castle Oil.

PROCEDURAL/FACTUAL BACKGROUND

Nationwide, as subrogee of its insured, Subin, commenced this action against Castle Oil by filing a summons and complaint on or about August 21, 2012, alleging it was negligent in servicing the Subin oil burner and delivering oil on January 21, 27, and 30, 2010, which resulted in property damage to the Subin home in the amount of $105,913.47. Specifically, the complaint alleges that on January 21, 2010, Castle Oil made a service call to the Subin home for a cleaning and evaluation of the boiler/burner flue, at which time it was recommended that the burner flue be cleaned and a chamber/end cone be replaced. According to the complaint, Subin accepted the recommendation, [*2]and on January 27, 2010, Castle Oil cleaned the burner flue, and on January 30, 2010, it delivered oil and repaired or replaced the burner chamber/end cone. Thereafter, on February 9, 2010, a severe puffback occurred from the oil burner, which filled the Subin home with smoke, causing significant property damage. As a result of the alleged negligence of Castle Oil, Nationwide seeks to recover $105,913.47, as the expenses it incurred to clean and restore the home of its insured, Victoria Subin.

Nationwide commenced a separate action against Dynamic Plumbing by filing a summons and complaint on or about February 18, 2013, alleging it was negligent in servicing the burner and/or installing the chamber/end cone from January 21, 2010 through February 19, 2010, resulting in a severe puffback on February 9, 2010 that caused significant property damage to the Subin home. As a result of the alleged negligence of Dynamic Plumbing, Nationwide seeks to recover $105,913.47, for clean-up and restoration expenses it incurred.

Castle Oil and Dynamic Plumbing served answers to the complaints denying the allegations of negligence and asserting various affirmative defenses. As is relevant here, Dynamic Plumbing asserts the affirmative defense of statute of limitations—that the action against it is time-barred by virtue of the three-year statute of limitations period for property damage claims.

The two actions were consolidated by order of this Court dated August 20, 2013, and the caption was amended accordingly.

Castle Oil now moves for summary judgment, contending that while depositions and other discovery remain outstanding, no further discovery will affect the outcome of the motion or create triable issues of fact where none exist. In support of the motion for summary judgment, Castle Oil submits copies of the pleadings, an affidavit from Thomas Carey, Senior Vice President for Operations of Castle Oil, a copy of the purported service agreement between Castle Oil and Subin, and a copy of an unsworn letter from Dynamic Plumbing to Castle Oil dated February 15, 2010, post-incident, explaining the services it provided on Castle Oil's behalf to its customer, Subin, the condition of the equipment, and the conversations Dynamic had with Subin about recommended service and repairs.

According to Carey, in January 2010, Subin entered into a residential oil heat service agreement with Castle Oil, entitled "Super Value Service Plan," which required it to provide an annual maintenance inspection and cleaning of Subin's boiler and oil burner and to respond to emergency repair service calls. The agreement, which is unsigned by Subin, does not obligate Castle Oil to provide any maintenance to the boiler. Castle Oil had no prior history with Subin or the heating equipment located in her home. Shortly thereafter, unbeknownst to Subin, Castle Oil engaged Dynamic Plumbing, purportedly as an independent contractor, to perform an initial cleaning and evaluation of Subin's boiler and burner. This service was completed on January 19, 2010. According to Mr. Carey, Castle Oil did not have a contract with Dynamic Plumbing, nor did Castle Oil supervise, direct, or control Dynamic Plumbing's work. Carey maintains that the first time a Castle Oil service technician performed any work on the Subin heating equipment was on February 9, 2010, after the puffback incident occurred. [*3]

In support of its motion, Castle Oil relies upon an unsworn letter from Dynamic Plumbing, dated February 15, 2010 (a date after the puffback incident), to describe the condition of the Subin heating equipment, the work that was done, and to establish that before the incident, Dynamic Plumbing's service technician recommended to Subin that she replace her boiler, or at least replace the combustion chamber, but that she declined the specific recommendation to replace the boiler. Dynamic Plumbing indicated in the letter to Castle oil that it was able to locate the combustion chamber replacement part for Subin's boiler. Further, Dynamic Plumbing acknowledged in the letter that it would be placing its insurance carrier on notice of the claim.

Nationwide opposes the motion by submitting a copy of an agreement between Castle Oil and Dynamic Plumbing covering the "2009-2010 winter season," which arguably contradicts Castle Oil's claim that no contract existed between the two entities. The agreement makes no reference to Dynamic Plumbing being an independent contractor. Of note, the agreement states that Dynamic Plumbing is to provide service to Castle Oil referrals by "an unmarked parkway legal van." Nationwide also points out that in the post-incident letter dated February 15, 2010, Dynamic Plumbing suggested to Castle Oil that they "should sit down and discuss a procedural, structured plan in customer communication in order to prevent this happening in the future," implying a communication error had occurred between the two entities in relation to its dealings with Subin.

Nationwide also submits an affidavit from Subin in opposition to the motion for summary judgment explaining her version of the events and the arrangement she had with Castle Oil. According to Subin, in January 2010, she became a customer of Castle Oil for the delivery of oil to her home and maintenance of her oil burner located at 25 Lily Pond Lane, Katonah, New York. On January 21, 2010, a Castle Oil representative serviced her boiler and recommended that she have her burner flue cleaned and the chamber/end cone and side covers replaced. Subin claims she asked the representative if she should have her boiler replaced, to which the representative responded that the recommended service "would be fine." Thereafter, on January 27, 2010, her burner flue was cleaned and on January 30, 2010, Castle Oil delivered oil. On that same day, Subin called Castle Oil to inquire as to when her oil burner would be fixed, and left a message specifically for "Ray." She called again on February 5, 2010 and spoke to someone by the name of "Marlin" to inquire as to the repair and was told that it would be looked into and someone would call her back. On February 9, 2010, a severe puffback occurred in the Subin home. Subin contacted Castle Oil and spoke to "Kelly Ballentine" who took a property damage report and sent a technician to the home to re-clean the boiler and perform other work. On or about February 16, 2010, Castle Oil sent another technician to replace the boiler chamber. Through its insurer, Castle Oil began clean-up efforts that day and authorized hotel and meal allowances for Subin to leave her home for health reasons. However, as of February 19, 2010, Castle Oil ceased its clean-up work and failed to return Subin's calls. On March 1, 2010, Subin filed a claim with her own insurance company, Nationwide, which thereafter completed the clean-up and restoration work.

Nationwide argues that questions of fact exist concerning the terms of any contract between Castle Oil and Subin, the scope and nature of the work that was done on the Subin heating system by Castle Oil and its subcontractor, Dynamic Plumbing, and the nature of their relationship. [*4]Nationwide argues that Subin relied on Castle Oil to repair her boiler and to maintain and service her heating equipment, and that Subin had no knowledge of or dealings with Dynamic Plumbing. Nationwide argues that the unsigned, "brochure-type," residential oil heat service agreement with Castle Oil, entitled "Super Value Service Plan," is not enforceable against Subin and that its exclusion for puffbacks is not binding. Nationwide also argues that Castle Oil is vicariously liable for the acts of its subcontractor, and that Subin only communicated with Castle Oil and had no knowledge of Dynamic Plumbing. The plaintiff maintains that the motion for summary judgment is premature in that depositions are needed to resolve the existing questions of fact.

Dynamic Plumbing moves pursuant to CPLR 3211 (a) (5) and 214 (4) to dismiss the complaint against it upon the ground that the three-year statute of limitations applicable to property damage actions has expired. Dynamic Plumbing contends that the accrual date for the property damage claim was February 9, 2010, the date of the puffback incident, and plaintiff did not commence the action against Dynamic Plumbing until February 18, 2013, nine days beyond the three-year statute of limitations period.

Nationwide opposes the motion contending that the accrual date was extended beyond the date of the puffback incident on February 9, 2010, as the Subin heating system was serviced after that date and the clean-up continued until the end of February 2010. Further, Nationwide contends it was not made aware of the extent of the continuing damages or harm until the end of February or beginning of March 2010. Nationwide argues that where a cause of action may be classified as either implied contract or negligence, the accrual date may depend on the classification deemed appropriate by the court. Nationwide further argues that the action is not time-barred by virtue of the relation-back doctrine set forth in CPLR 203 (b), in that Dynamic Plumbing and Castle Oil are united in interest and therefore, the action against Dynamic Plumbing relates back to the date the action was commenced against Castle Oil, which was well within the statute of limitations period.

DISCUSSION/ANALYSIS

Castle Oil's Motion for Summary Judgment

"Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts'" (Brothers v New York State Electric and Gas Corp., 11 NY3d 251, 257 [2008]). "The primary justification for this rule is that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor'" (id. at 257-258). "This general rule, however, is subject to various exceptions, and it has been observed that the general rule "is now primarily important as a preamble to the catalog of its exceptions" ' " (id.). The exceptions to the rule insulating a party from liability for the acts of an independent contractor fall into three broad categories: (1) negligence of the employer in selecting, instructing, or supervising the contractor; (2) nondelegable duties of the employer, arising out of some relation to the particular plaintiff or toward the public; and (3) work which is specially, peculiarly, or inherently dangerous (id., citing Restatement [Second] of Torts § 409, Comment b [emphasis [*5]added]).

The exception for nondelegable duties has been defined as one that "requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted" (Kleeman v Rheingold, 81 NY2d 270, 274 [1993]). The exception for nondelegable duties involves situations where the employer "(1) is under a statutory duty to perform or control the work, (2) has assumed a specific duty by contract, (3) is under a duty to keep premises safe, or (4) has assigned work to an independent contractor which the employer knows or has reason to know involves special dangers inherent in the work or dangers which should have been anticipated by the employer" (Rosenberg v Equitable Life Assurance Society of the U.S., 79 NY2d 663, 668 [1992] [emphasis added]).

"[A] defendant who employs an independent contractor to perform services that the defendant has undertaken to perform, is liable for the negligence of the independent contractor" (Mduba v Benedictine Hospital, 52 AD2d 450, 453 [3d Dept 1976], citing Miles v R & M Appliance Sales, 26 NY2d 451, 453-454 [1970].) Under the ostensible agency doctrine, "[o]ne who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or [its] servants" is liable for the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them itself (Miles v R & M Appliance Sales, 26 NY2d at 454, quoting Restatement, 2d, Torts § 429; Mondello v New York Blood Center-Greater New York Blood Program, 80 NY2d 219, 229 [1992]). This rule subjects the employer of the contractor to liability where the contractor is careless or negligent in rendering the services the employer undertook to perform (id., quoting Restatement, 2d, Torts § 429, Comment b). "Under established principles, the client's reasonable expectations and beliefs about who will render a particular service are a significant factor in identifying duties that should be deemed to be nondelegable'" (Kleeman v Rheingold, 81 NY2d at 276).

Examining the papers submitted in support of and in opposition to Castle Oil's motion for summary judgment in a light most favorable to the plaintiff, the defendant has failed to meet its "prima facie showing of entitlement to judgment as a matter of law, [by] tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1980]; Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1979]; Martin v Briggs, 235 AD2d 192, 196 [1st Dept 1997]). It is undisputed that Subin retained Castle Oil for oil delivery services and to perform an initial cleaning and evaluation of her boiler and oil burner. According to Subin, she also expected that Castle Oil would make the recommended repairs to her heating system before the incident occurred. Indeed, Castle Oil held itself out to Subin as the provider of the services she requested—servicing and repairing her home heating equipment and delivering oil. According to Subin, all of her communications and dealings were with Castle Oil and its authorized representatives, and not Dynamic Plumbing, an entity unknown to Subin. Quite tellingly, the contract between Castle Oil and Dynamic Plumbing provided that service to Castle Oil referrals was to be made in "unmarked" vans, further indicating that Castle Oil intended to solely hold itself out to its customers, including Subin, as the provider of the services. [*6]

Subin claims that the Castle Oil technician recommended that she replace the chamber/end cone and side covers and that she accepted the recommendation. Thereafter, Subin contacted Castle Oil two more times, all before the incident, to inquire as to when the repair was going to be done. Subin relied on the recommendations of Castle Oil, which, according to Subin, accepted responsibility to complete the work on her home heating equipment. Accordingly, Castle Oil has failed to demonstrate the absence of any material issues of fact (cf., Bailly v Rudolf Steiner School, 293 AD2d 259, 260 [1st Dept 2002] [School not liable for the actions of its independent contractor bus company for injuries sustained by the infant plaintiff moments after alighting from a school bus where the "[p]laintiff presented no evidence that the school held itself out as the provider of bus transportation or that it controlled the bus company and, indeed, the school's transportation contract identified the name and address of the bus company"]).

Although Castle Oil relies on an exclusion for puffbacks in its residential oil heat service agreement entitled "Super Value Service Plan," no competent proof is submitted establishing that Subin accepted the terms of this agreement or that they were binding upon her.

Here, the defendant has failed to meet its "prima facie showing of entitlement to judgment as a matter of law, [by] tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 NY2d at 324). Nevertheless, even assuming that Castle Oil met its initial burden on the motion, issues of fact exist as to the extent of Castle Oil's control over Dynamic Plumbing, whether Castle Oil was negligent in failing to contact Dynamic Plumbing about completing the repair, and whether the exclusion in the service agreement for puffbacks is binding upon Subin, thereby requiring a denial of the motion (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d at 231; Martin v Briggs, 235 AD2d at 196). Based upon the foregoing, since triable issues of fact exist, Castle Oil's motion for summary judgment is denied.

Dynamic Plumbing's Motion to Dismiss Based Upon Statute of Limitations

Dynamic Plumbing moves pursuant to CPLR 3211 (a) (5) and 214 (4) to dismiss the complaint against it on the ground that the cause of action is time-barred by the three-year statute of limitations applicable to property damage actions. Here, the cause of action accrued on February 9, 2010 when the puffback incident occurred due to the alleged negligence of the defendants in servicing and repairing the Subin heating equipment. The summons and complaint naming Dynamic Plumbing as a defendant was not filed until February 18, 2013, nine days after the three-year statute of limitations period expired. Nationwide opposes the motion, arguing that the date of accrual should extend into the beginning of March 2010, when the extent of the damage was realized and Castle Oil stopped its clean-up operations. Nationwide also argues that the cause of action is not time-barred by virtue of the relation-back doctrine set forth in CPLR 203 (b).

Initially, Dynamic Plumbing has met its burden of establishing, prima facie, that the three-year statute of limitations governing property damage actions had expired prior to the commencement of the action against it (see Xavier v RY Management Company, Inc., 45 AD3d 677, 678 [2d Dept 2007]; CPLR 214 [4]). "Thus, the burden [shifts] to the plaintiff to establish the [*7]applicability of the relation-back doctrine" (id.).

The relation-back doctrine, which is codified by CPLR 203 (b), "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]). The doctrine enables a plaintiff to correct a pleading—by adding a new claim or new party—after the statutory limitations period has expired by giving courts the " sound judicial discretion' . . . to identify cases that justify relaxation of limitations strictures to facilitate decisions on the merits' if the correction will not cause undue prejudice to the plaintiff's adversary" (id. at 177-178).

"In order for a claim asserted against a new defendant to relate back to the date a claim was asserted against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining his or her defense on the merits by virtue of the delayed, and otherwise stale, assertion of those claims against him or her, and (3) the new party 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 timely commenced against him or her as well" (Alvarado v Beth Israel Medical Center, 60 AD3d 981, 982 [2d Dept 2009], citing Buran v Coupal, 87 NY2d at 178). "The linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (id.).

"While CPLR 203(c) speaks of the relation-back doctrine applying to claims interposed against the defendant or co-defendant united in interest with such defendant when the action is commenced,' the doctrine may also apply to separate actions which are ultimately consolidated (Xavier v RY Management Company, Inc., 45 AD3d 678). Here, there is no question that the first and third prongs of the test necessary to invoke the benefit of the relation-back doctrine have been met. Both claims arose out of the puffback incident of February 9, 2010, allegedly caused by the negligence of Castle Oil and Dynamic Plumbing in the servicing of the Subin home heating equipment. In addition, Dynamic Plumbing had notice of the claim immediately after it occurred, prepared a letter report to Castle Oil about the series of events before the incident, and acknowledged that it would place its insurance carrier on notice of the claim. Moreover, it is undisputed from the motion papers that Subin was led to believe that all of her dealings were with Castle Oil, and that she had no knowledge of the existence of Dynamic Plumbing. Knowledge of the arrangement between Castle Oil and Dynamic Plumbing remained exclusively with them, and was not made known to Nationwide or Subin until after the lawsuit was commenced against Castle Oil and discovery was exchanged, thereby placing the plaintiff at a disadvantage in pursuing its claim against all appropriate parties.

The second prong—whether Dynamic Plumbing is united in interest with Castle Oil—is at issue here. "[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim [*8]asserted against them by the plaintiff" (Connell v Hayden, 83 AD2d 30, 42-43 [2d Dept 1981]). "In other words, when because of some legal relationship between the defendants they necessarily have the same defenses to the plaintiff's claim, they will stand or fall together and are therefore united in interest. Unity of interest is [generally] a question of law and not of fact" (id.).

"[J]oint tortfeasors are generally not united in interest, since they frequently have different defenses, in that one tortfeasor usually will seek to show that he or she is not at fault, but that it was the other tortfeasor who is liable" (LeBlanc v Skinner, 103 AD3d 202, 210 [2d Dept 2012]). "However, joint tortfeasors will be deemed to be united in interest where one is vicariously liable for the other . . . such as where one tortfeasor is the agent of the other" (id.).

"Accordingly, the parties are united in interest where there is a jural or legal relationship giving rise to potential vicarious liability" (id.). The principle of vicarious liability is sometimes referred to as imputed negligence or respondeat superior (O'Connell v Hayden, 83 AD2d at 45). "Underlying the doctrine of vicarious liability . . . is the notion of control. The person in a position to exercise some general authority or control over the wrongdoer must do so or bear the consequences" (LeBlanc v Skinner, 103 AD3d at 210, quoting Kavanaugh v. Nussbaum, 71 NY2d 535, 546 [1988]). The following relationships have been determined to be united in interest for torts committed within the scope of the relationship—partners and co-partners, employers (masters) and employees (servants), business corporations and their employees, principals and agents (see O'Connell v Hayden, 83 AD2d at 46-47).

"Agency is a jural relationship between a principal and an agent, which results from the manifestation of consent of one person to allow another to act on his or her behalf and subject to his or her control, and consent by the other so to act' " (LeBlanc v Skinner, 103 AD3d at 210, quoting Maurillo v. Park Slope U—Haul, 194 AD2d 142, 146 [2d Dept 1993]). "The agent is a party who acts on behalf of the principal with the latter's express, implied, or apparent authority" (Maurillo v. Park Slope U—Haul, 194 AD2d at146).

Here, Nationwide established that Dynamic Plumbing was acting as the agent of Castle Oil, and therefore, Dynamic Plumbing and Castle Oil are united in interest for purposes of the relation-back doctrine test.[FN1] Alternatively, even though it has been argued that Dynamic Plumbing was an independent contractor and not Castle Oil's express agent, the facts of this case warrant a finding that the two entities were united in interest by virtue of the doctrine of ostensible agency. While vicarious liability generally turns on agency or control in fact, apparent or ostensible agency (or, as it is sometimes called, agency by estoppel or by holding out) may also serve as a predicate for vicarious liability, and thus, a unity in interest (see Hill v St. Clare's Hospital, 67 NY2d 72, 79 [1986]). Under the ostensible agency doctrine, an employer may be held vicariously liable for the [*9]acts of an independent contractor where the contractor was provided by the employer or was otherwise acting on the employer's behalf, and the client reasonably believed that the contractor was acting at the employer's behest (see Malcolm v The Mount Vernon Hospital, 309 AD2d 704, 705 [1st Dept 2003]; Mondello v New York Blood Center-Greater New York Blood Program, 80 NY2d at 229).

Dynamic Plumbing should have been aware that a customer, like Subin, would have reasonably believed that she was dealing with an agent of Castle Oil when it responded to a service call, and therefore, even if Dynamic Plumbing was not an express agent, the facts presented here warrant a finding that Dynamic Oil can be held liable an ostensible or apparent agent (see Augeri v Massoff, 134 AD2d 308 [2d Dept 1987]; see also DeSanna v Rockefeller Center, Inc., 9 AD3d 596, 599 [3d Dept 2004]). Accordingly, under this alternate theory, Dynamic Plumbing and Castle Oil were united in interest for purposes of the relation-back doctrine.

Since Nationwide has satisfied all three prongs of the relation-back doctrine, including establishing that the defendants are united in interest, service of process upon Dynamic Plumbing will relate back to the timely commenced action against Castle Oil. Accordingly, Dynamic Plumbing's motion to dismiss based upon the expiration of the statute of limitations is denied.

Based upon the foregoing, it is hereby

ORDERED, that defendant Castle Oil's motion pursuant to CPLR 3212 for summary judgment is denied; and it is further,

ORDERED, that defendant Dynamic Plumbing's motion pursuant to CPLR 3211 (a) (5) and 214 (4) based upon the expiration of the statute of limitations is denied; and it is further

ORDERED, that the parties are directed to appear in the Compliance Conference Part on September 26, 2013, at 9:30 a.m. in Room 800 of the Westchester County Courthouse at 111 Dr. Martin Luther King, Jr., Boulevard, White Plains, New York 10601; and it is further,

ORDERED, that all other relief requested and not decided herein is denied.

This constitutes the decision and order of the Court.

Dated: White Plains, New York

September 9, 2013

_____________________________________HON. FRANCESCA E. CONNOLLY, J.S.C. Footnotes

Footnote 1: It matters not that Nationwide initially sued Castle Oil, the principal, and now seeks to apply the relation-back doctrine to Dynamic Oil (see LeBlanc v Skinner, 103 AD3d at 211; Connell v Hayden, 83 AD2d at 48] ["unity of interest does not turn upon whether the actual wrongdoer or the person or entity sought to be charged vicariously was served first").