Jeraci v Cooper

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Jeraci v Cooper 2017 NY Slip Op 33322(U) April 11, 2017 Supreme Court, Westchester County Docket Number: 71435/2014 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 commence the the statutory statutory To commence time for for appeals appeals as of of right right time (CPLR 5513[a]), 5513[a]), you you are are (CPLR advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: ·J.S.C. PRESENT: HON. HON. SAM D. WALKER, WALKER,J.S.C. · · x ------------------------------------------------------------------------------x JOSEPH JERACI JERACI AND AND NANETTE NANETTE JERACI, JERACI, JOSEPH Plaintiffs, Plaintiffs, Index No. 71435/2014 71435/2014 Index # 2 &4 &4 Seq #2 Decision & Order Order Decision -against-againstMICHAEL COOPER, COOPER, GALA GALA SAND SAND AND AND GRAVEL GRAVEL INC., MICHAEL MONGAUP GAME GAME PRESERVE, PRESERVE, INC., and MONGAUP Defendants. Defendants. ·----------------------x --------------------------------------------------------------------------------------x MICHAEL COOPER, COOPER, MICHAEL Third-Party Plaintiff, Plaintiff, Third-Party -against-againstSULLIVAN COUNTY COUNTY ATV ATV ASSOCIATION, ASSOCIATION, INC., SULLIVAN Third-Party Defendant. Defendant. Third-Party --------·--------------------x --------------------------------------------------------------------------------------x MONGAUP GAME GAME PRESERVE, PRESERVE, INC., MONGAUP Second Second Third-Party Third-Party Plaintiff, Plaintiff, -against-againstSULLIVAN COUNTY COUNTY ATV ATV ASSOCIATION, ASSOCIATION, INC., SULLIVAN Second Third-Party Third-Party Defendant. Defendant. Second ·-------------~--------x -~---------------------------------------------------~--------------------------------x The following following papers papers were were read on a motion motion by Defendant/Third-Party DefendantlThird-Party Defendant Defendant The Second Third-Party Third-Party Defendant, Defendant, Sullivan Sullivan County County ATV ATV Association, Association, Inc. ("SCATV"), ("SCATV''), and Second seeking an order order pursuant pursuant to C.P.L.R. C.P.L.R. 3211 (a)(2), (a)(2), (a)(5) (a)(5) and and C.P.L.R. C.P.L.R. 1009, 1009, dismissing dismissing seeking 1 of 7 [*FILED: 2] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 Plaintiffs, Joseph Jeraci Amended Complaint Complaint against against it; and on a Plaintiffs, Joseph Jeraci and NanetteJeraci's NanetteJeraci's Amended cross-motion by Plaintiffs Plaintiffs seeking extension of time time to serve serve the the Complaint Complaint on SCA SCATV: cross-motion seeking an extension PAPERS PAPERS Notice Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-I Memorandum Memorandum of Law Law in Support Support Cross-Motion/Affirmation/Exhibits A-D A-D Notice Notice of Cross-Motion/Affirmation/Exhibits Reply Reply Affirmation/Exhibit Affirmation/Exhibit I NUMBERED NUMBERED 1-11 12 13-18 13-18 19-20 19-20 On March 2012, both Michael Cooper ("Cooper") ("Cooper") and Plaintiff, Joseph Jeraci Jeraci March 31, 2012, Michael Cooper Plaintiff, Joseph ("Jeraci/Plaintiff'), for SCA SCATV, a 501 (c)(3) (c)(3) charitable charitable organization organization in ("JeracilPlaintiff'), were were volunteering volunteering for Sullivan York. Jeraci Jeraci was assisting assisting with the removal trees and debris debris to Sullivan County, County, New New York. removal of trees clear the trails trails on property property owned Defendant/Second Third-Party Plaintiff, Mongaup Mongaup clear owned by DefendanUSecond Third-Party Plaintiff, Game Preserve Preserve ("Mongaup"),for ("Mongaup"),for SCATV's Game SCA TV's annual annual charity charity all-terrain all-terrain vehicle vehicle ("ATV") ("ATV") ride. Cooper operating an excavator purpose, when pressure to Cooper was operating excavator for for the same same purpose, when he applied applied pressure off a tree dislodge a chainsaw, chainsaw, causing causing a branch the tree tree to snap snap off tree with the excavator excavator to dislodge branch on the and fly in Jeraci's The excavator excavator was was owned owned by Gala Gala Sand Sand and Jeraci's direction, direction, injuring injuring him. The Gravel, Inc. ("Gala") loaned to Cooper Cooper to perform perform the clearing. clearing. Gravel, ("Gala") and loaned Plaintiffs commenced commenced this December 19, 2014, Plaintiffs this action action on December 2014, by filing filing a Summons Summons and Complaint against against Cooper, Cooper, Gala Mongaup alleging negligence and a loss of Complaint Gala and Mongaup alleging negligence consortium and a medical medical expenses Nanette Jeraci. consortium expenses claim by Nanette Jeraci. Gala Gala served served and filed an Answer with affirmative affirmative defenses defenses and a cross Answer cross claim claim on or about about January January 15, 2015. 2015. Cooper Cooper served and filed an Answer Answer with affirmative March served affirmative defenses defenses and a cross-claim cross-claim on or about about March 25,2015 and Gala Gala served served and and filed filed an an Answer Answer with with affirmative affirmative defenses, defenses, a a cross-claim cross-claim and and 25, 2015 and a counter counter claim, claim, on or about about June June 8, 2015. 2015. Cooper Cooper then then filed filed a Third-Party Third-Party Complaint Complaint against SCATV SCATV ori on January January 29, 29,2016 alleging negligence, negligence, culpable culpable conduct conduct and and breaches breaches 2016 alleging against 2 2 of 7 [*FILED: 3] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 and violations violations of law. Mongaup Mongaup then then filed a Second Second Third-Party Third-Party Complaint Complaint also also against against SCATV indemnity, and breach SCATV on February February 15, 2016, 2016, alleging alleging contribution, contribution, common common law indemnity, breach of oral agreement. served and filed Answers Answers with affirmative agreement. SCA SCA TV TV served affirmative defenses defenses and a crosscrossclaim, Third-Party Complaints April 29, 2016. Then 2016, claim, to both Third-Party Complaints on or about about April 29,2016. Then on May 23, 23,2016, Plaintiffs Amended Complaint Plaintiffs served served and filed an Amended Complaint adding adding SCA SCA TV TV as a defendant. defendant. Cooper Cooper Amended Answers Answers to the Amended Amended Complaint. and Gala Gala filed Amended Complaint. The have commenced motion The parties parties have commenced discovery discovery and SCA SCA TV TV now now files files the instant instant motion seeking Amended Complaint seeking to dismiss dismiss Plaintiffs' Plaintiffs' Amended Complaint filed against against it and Plaintiffs Plaintiffs cross-move cross-move extend their their time time to serve serve the Amended Complaint on SCATV. SCA TV. Gala Gala also also filed a motion motion to extend Amended Complaint judgment seeking for for summary summary judgment seeking dismissal dismissal of Plaintiffs' Plaintiffs' Complaint Complaint against against it and Mongaup Mongaup motion for for summary summary judgment seeking dismissal dismissal of Plaintiffs' Plaintiffs' Complaint Complaint against against it filed a motion judgment seeking and partial judgment against partial summary summary judgment against SCA SCA TV. Mongaup Mongaup has since since filed a Stipulation Stipulation of Discontinuance of the Second Second Third Third Party Party Action, discontinuing with prejudice all claims claims Discontinuance Action, discontinuing with prejudice against SCA SCA TV TV and withdrawing that part of its motion motion seeking seeking partial partial summary against withdrawing that summary judgment judgment against SCA SCA TV. The parties' summary motions are addressed addressed in a separate separate against The parties' summary judgment judgment motions Decision and Order. Order. Decision Discussion Discussion Practice Law and Rules Rules provides, provides, in relevant relevant part part that, that, Rule 3211 of the Civil Practice party may may move move for for judgment dismissing one one or more more causes of action action judgment dismissing causes of [a] party asserted · asserted against against him on the ground ground that: the court court has not jurisdiction subject matter matter of the the cause cause of action; action; (2) the jurisdiction of the subject or cause of action action may may not be maintained maintained because because of arbitration arbitration and (5) the cause award, collateral collateral estoppel, estoppel, discharge discharge in bankruptcy, bankruptcy, infancy infancy or other other disability disability award, moving party, party, payment, payment, release, release, res judicata, statute of limitations, limitations, or of the moving judicata, statute statute of frauds; frauds; statute R. 3211 (a)(2) (a)(2) & (a)(5). (a)(5). N.Y. Civ. Prac. L. & R. 3 3 3 of 7 [*FILED: 4] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 defendant (a)(5), a defendant In moving moving to a cause cause of action pursuant to CPLR CPLR 3211 (a)(5), action pursuant dismiss a to dismiss In Plain action has expired." must demonstrate demonstrate that that the the time time within the action expired." Plain commence the which to commence within which must 2014). v. Vassar Vassar Bros. Hosp., 115 AD.3d N.Y.S.2d 558, 559 (2d Dep't Dep't 2014). 922, 923, 982 N.Y.S.2d A.D.3d 922, Hosp., 115 v. 2015 and April 1, 2015 limitations expired of limitations SCA TV asserts asserts that applicable statute statute of expired on April the applicable that the SCATV dismissed. therefore, Plaintiffs' action action against against it should should be dismissed. therefore, Plaintiffs' jurisdiction because SCA lacks subject matter jurisdiction because subject matter Court lacks this Court that this asserts that also asserts TV also SCATV executed by court or a stipulation of court leave of Plaintiffs filed Complaint without stipulation executed without leave Amended Complaint the Amended filed the Plaintiffs Third-Party Answers to the Third-Party all parties, parties, more more than than twenty twenty days days after after the service service of SCA TV's Answers SCATV's all subject without subject order issued Complaints brought by by Cooper Mongaup. "Ajudgment issued without "A judgment or order and Mongaup. Cooper and Complaints brought may not be time and may any time matter jurisdiction is void, defect may may be raised raised at Clny that defect void, and that jurisdiction is matter 657 N.Y.S.2d 230 A.D.2d 253, 657 waived" Morrison v. Budget Budget Rent Rent A Car Car Systems, N.Y.S.2d 721 Systems, Inc., 230AD.2d Morrison v. waived" Dep't 1997). 1997). (2d Dep't the motion grants the Court now the Court Based upon upon a a review review of of the evidence presented, now grants motion presented, the the evidence Based extend the motion to extend denies Plaintiffs' to dismiss dismiss based on the Plaintiffs' motion limitations and denies of limitations statute of the statute based on to allege personal time Here, Plaintiffs' Plaintiffs' Complaint Complaint and Amended Complaint allege personal injuries injuries Amended Complaint serve. Here, to serve. time to of statute of applicable statute Therefore, the 2012. Therefore, due to an incident incident that occurred on March March 31, 31,2012. the applicable that occurred to an due their 2015. Plaintiffs about March limitations is is three years and expired March 31, 2015. Plaintiffs filed their expired on or about three years limitations of limitations. statute of the statute of the Amended Complaint on May 23, limitations. expiration of the expiration after the 2016, after 23, 2016, on May Amended Complaint the action which to commence within which time within Therefore, SCA SCA TV has demonstrated commence the action that the time demonstrat~d that TV has Therefore, the that the evidence that sufficient evidence has expired burden now now shifts Plaintiffs to present present sufficient shifts to Plaintiffs the burden and the expired and has Center, 60 relation-back doctrine doctrine applies applies to this v. Beth Beth Israel Israel Medical Medical Center, Alvarado v. this case. Alvarado relation-back AD.3d 981, 876 N.Y.S.2d N.Y.S.2d 147 (2d Dep't Dep't 2009). 2009). A.D.3d 981, 4 4 of 7 [*FILED: 5] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 order for for a claim claim asserted new defendant relate back back to the "In order asserted against against a new defendant to relate the date date a claim was was asserted asserted against against another another defendant, plaintiff must must establish claim defendant, the plaintiff establish that that (1) both claims arose arose out of the same new party party is claims same conduct, conduct, transaction, transaction, or occurrence, occurrence, (2) the the new united in interest interest with the original reason of relationship, can be united original defendant, defendant, and by reason of that that relationship, charged with notice notice of the institution institution of the action prejudiced in maintaining maintaining charged action and will not be prejudiced defense on the merits merits by virtue his or her defense virtue of the delayed, delayed, and otherwise otherwise stale, stale, assertion assertion of those claims claims against against him or her, and (3) the new new party party knew knew or should have known known that, those should have mistake by the the plaintiff plaintiff as to the identity identity of the proper proper parties, parties, the but for for a mistake the action action would would timely commenced commenced against have been timely against him or her as well" well" Id. The Court Court finds that the relation-back relation-back doctrine because The finds that doctrine does does not apply apply in this this case case because parties are not united united in interest interest and Plaintiff Plaintiff did not make make a mistake mistake as to the identity identity the parties proper party. party."Parties united in interest interest only interest of parties in of the proper "Parties are united only where where 'the 'the interest of the parties subject-matter is such that they the subject-matter such that they stand stand or fall together together and that that judgment judgment against against one similarly affect other'" Gatto Gatto v. v. Smith-Eisenberg, Smith-Eisenberg, 280 will similarly affect the other"' 280 A.D.2d A.D.2d 640, 641, 721 N.Y.S.2d 374, 375 (2d Dep't Dep't 2001) (Desiderio v. N.Y.S.2d 2001) (Desiderio v. Rubin, Rubin, 234 A.D.2d A.D.2d 581, 583, 652 N.Y.S.2d 68). "Further, "Further, parties' parties' interests interests are united united only liable for N.Y.S.2d only where where one one is vicariously vicariously liable other" Id. SCA SCATV Defendants have have difference TV and the Third-Party Third-Party Defendants difference defenses defenses the acts of the other" against one one would and a judgment judgment against would not affect affect the other. other. Xavier Xavier v. v. RY RY Management Management Co., Inc., 45 A.D.3d A.D.3d 677, 846 N.Y.S.2d N.Y.S.2d 227 (2d Dep't Dep't 2007). 2007). The relation-back relation-back doctrine here because because Plaintiffs Plaintiffs did not The doctrine also also does does not apply apply here establish that that they they made made a mistake mistake as to the identity identity of SCATV. new establish SCA TV. 'Notice 'Notice to the new defendant within within the applicable applicable limitations relation-back defendant limitations period period is the "linchpin" "linchpin" of the relation-back 5 5 of 7 [*FILED: 6] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 doctrine, and thus thus the third third prong prong of the test test focuses, focuses, inter inter alia, on "whether "whether the defendant defendant doctrine, have reasonably reasonably concluded concluded that that the failure failure to sue within the limitations limitations period period meant meant could have within the that there there was intent to sue that that [entity] [entity] at all 'and that that the matter matter has been been laid to rest that was no intent concerned"" Shapiro Shapiro v. v. Good Good Samaritan Samaritan Regional Regional Hosp. Medical Medical Center, Center, as far far as [it] is concerned"'' N.Y.S.2d 94 (2d Dep't Dep't 2007). 2007). Further, Further, "where "where the party party suing suing 42 AD.3d A.D.3d 443, 840 N.Y.S.2d "intentionally decides decides not to assert assert a claim claim against against a party party known known to be potentially potentially liable, "intentionally there has been no mistake mistake and the [party [party suing] suing] should should not be given given a second second opportunity opportunity there assert that that claim claim after after the limitations limitations period period has expired" expired" Losner Losner v. v. Cashline, Cashline, L. P., P., 303 to assert AD.2d N.Y.S.2d 91, 94 (2d Dep't Dep't 2003). 2003). A.D.2d 647, 648, 757 N.Y.S.2d Therefore, "CPLR "CPLR 1009, which which permits permits a plaintiff plaintiff to amend amend his complaint complaint without Therefore, without leave of the court court to assert assert against against a third-party third-party defendant defendant any any claim claim the plaintiff plaintiff has leave against him within within 20 days days of service service of of the answer answer to the third-party third-party complaint complaint upon the against plaintiffs attorney, attorney, does does not relieve relieve a plaintiff plaintiff from from the the operation operation of the Statute Statute of plaintiffs Limitations otherwise otherwise applicable applicable to the claims claims asserted" asserted" Zaveta Zaveta v. v. Porte/Ii, Portelli, 127 A Limitations A. D.2d 760, N.Y.S.2d 152, 153 (2d Dep't Dep't 1987). 1987). "Nor "Nor is the plaintiff[] plaintiff [] aided aided by the relation-back relation-back 512 N.Y.S.2d doctrine of of CPLR CPLR 203(e), 203(e), since since the third-party third-party claim claim was not interposed interposed prior prior to the the doctrine expiration of the applicable applicable Statute Statute of of Limitations" Limitations" Id. expiration Accordingly, SCATV's motion motion to dismiss dismiss the Amended Amended Complaint, Complaint, dismissing dismissing all Accordingly, SCATV's claims against against SCA SCA TV TV with prejudice, prejudice, is granted granted and Plaintiffs' Plaintiffs' cross cross motion motion seeking seeking an claims extension of time time to serve serve its Amended Complaint, is denied. denied. Amended Complaint, extension 6 6 of 7 [*FILED: 7] WESTCHESTER COUNTY CLERK 04/12/2017 03:57 PM NYSCEF DOC. NO. 121 INDEX NO. 71435/2014 RECEIVED NYSCEF: 04/11/2017 The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of of the Court. Court. The Dated: White White Plains, Plains, New New York York Dated: April J I ,2017 April JI , 2017 flut J J..~. . ~ ~ WALKER, J.S.C. J.S.C. . SAM D. WALKER, 7· 7 7 of 7

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