Jacek Wikiera v City of New York

[*1] Jacek Wikiera v City of New York 2014 NY Slip Op 51005(U) Decided on June 23, 2014 Supreme Court, Bronx County Danziger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2014
Supreme Court, Bronx County

Jacek Wikiera, Plaintiff(s),

against

City of New York, NEW YORK CITY DEPARTMENT OF EDUCATION, AND NEW YORK CITY CONSTRUCTION AUTHORITY, , Defendant(s).



307404/13
Mitchell J. Danziger, J.

In this action for personal injuries sustained for alleged violations of the Labor Law, defendant NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY (School Construction Authority) moves seeking an order pursuant to CPLR § 3211(a)(5), dismissing the instant action on grounds that it is barred by the applicable statute of limitations. Specifically, School Construction Authority avers that this action was commenced approximately two months after the expiration of the applicable statute of limitations prescribed by Public Authorities Law § 1744(1) and that as such the action is time-barred. Plaintiff opposes this motion arguing that insofar as this action was timely commenced against the other defendants, CPLR § 203(c) and the "united in interest doctrine," warrant the this action be deemed timely commenced against the School Construction Authority.

For the reasons that follow hereinafter, School construction Authority's motion is hereby granted.

This is an action for alleged personal injuries sustained from defendants' purported violations of Labor Law §§ 200, 240(1), and 241(6). Plaintiff's complaint, filed on December 17, 2013, alleges that on October 15, 2012, plaintiff was injured while working within premises known as PS 277, located at 519 Saint Anns Avenue, Bronx, NY. Specifically, plaintiff alleges that while employed by Admiral Construction, LLC (Admiral) - an entity retained to do work by the defendants - he sustained injury. Plaintiff further alleges that defendants owned, managed, and retained Admiral to perform work at PS 277, and that they were negligent in failing to provide him a safe place within which to work. Plaintiff alleges that he sustained injury as a result of the aforementioned negligence.

On a motion to dismiss pursuant to CPLR § 3211(a)(5), the court must construe all allegations in the complaint as true and resolve all inferences in favor of the plaintiff (Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815, 816 [2d Dept 2008]; Sabadie v Burke, 47 AD3d 913, 914 [2d Dept 2008]; Matter of Schwartz, 44 AD3d 779, 779 [2d Dept 2007]). A defendant seeking to dismissal of an action as barred by the applicable statute of limitations, bears the burden of establishing that the applicable statute of limitations expired prior to the commencement of the action (Swift v New York Medical College, 25 AD3d 686, 687 [2d Dept 2006]; Gravel v Cicola, 297 AD2d 620, 620 [2d Dept 2002]; Duran v Mendez, 277 AD2d 348, 348 [2d Dep 2000]). If defendant meets his burden, in order to avoid dismissal, it is incumbent upon the plaintiff to present evidence establishing that the cause of action falls within an exception to the statute of limitations (Gravel at 621).

Public Authorities Law § 1744(1), which is found under Title 6 of the New York City School Construction Authority Act, states that

Except in an action for wrongful death, no action or proceeding shall be prosecuted or maintained against the authority, or any member, officer, agent, or employee thereof, for personal injury or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of the authority or of any such member, officer, agent or employee thereof, or for any other alleged tort of the authority or of such member, officer, agency or employee thereof, unless . . . the action or proceeding shall be commenced within one year after the happening of the event upon which the claim is based.

Accordingly, any action against the School Construction Authority must be commenced within one year of the accrual of any cause of action against it (D & L Associates, Inc. v New York City School Const. Authority, 69 AD3d 435, 435 [1st Dept 2010]; Ramirez v New York City School Constr. Auth., 229 AD2d 313, 313 [1st Dept 1996]). A cause of action for personal injuries generally accrues on the date an injury is sustained (Fleishman v Eli Lilly and Co., 96 AD2d 825, 825 [2d Dept 1983] ["In general, it can be said that a cause of action for personal injuries, whether sounding in negligence, malpractice, or products liability, accrues at the time of injury."]).

Here, a review of the pleadings establishes that plaintiff allegedly sustained injury on October 15, 2012. As such his cause of action accrued on the date he sustained injury. However, plaintiff did not file his complaint until December 17, 2013, some 14 months later. Since an action in supreme Court is commenced by filing a summons and complaint (CPLR § 304 ["An action is commenced by filing a summons and complaint or summons with notice."]), this action was commenced two months after the expiration of the one-year statute of limitations prescribed by Public Authorities Law § 1744(1). Accordingly ,this action is time-barred and must be dismissed.

Contrary to plaintiff's assertion neither CPLR § 203(c), nor the united in interest doctrine warrant denial of the instant motion. It is certainly true that under CPLR § 203(c), "a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced." In fact, pursuant to the foregoing, our courts have promulgated the "relation back doctrine," which "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] [internal quotation marks omitted]). However, the the relation back doctrine only allows an otherwise untimely claim against a party who was not timely sued to survive if it is established that (1) both claims - meaning, the one timely interposed and the untimely claim which plaintiff seeks to assert arose out of 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 such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and; (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well (id. at 178).

Here, plaintiff untimely sued School Construction authority at the same time it sued the other defendants, thus there exists no prior timely commenced claim to relate plaintiff's untimely claim against School Construction Authority. For this reason alone, the Court finds plaintiff's opposition [*2]unavailing. Moreover, plaintiff fails to adequately establish that School Construction Authority is united in interest with the other defendants. Parties are united in interest when a "judgment against one will similarly affect the other" (27th Street Block Ass'n. v Dormitory Authority of State of New York, 302 AD2d 155, 164 [1st Dept 2002]). Here, plaintiff's assertion that because one attorney represents all parties and interposed a single answer on their behalf is not tantamount to establishing that School Construction Authority is united in interest with the other defendants. Plaintiff utterly fails to establish that any judgment against School Construction Authority will have a similar affect on the other defendants or that the converse is true. It is hereby

ORDERED that plaintiff's complaint be dismissed with prejudice as against School Construction Authority. It is further

ORDERED that School Construction Authority serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof.

This constitutes this Court's decision and Order.

Dated : June 23, 2014

Bronx, New York

______________________________MITCHELL J. DANZIGER, J.S.C.