Murphy v Westchester One, LLC

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Murphy v Westchester One, LLC 2020 NY Slip Op 34556(U) September 25, 2020 Supreme Court, Westchester County Docket Number: 58550/2017 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 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 To commence commence the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), you are advised advised to serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF WESTCHESTER WESTCHESTER PRESENT: SAM D. WALKER, J.S.C. PRESENT: HON. HON. SAM WALKER, J.S.C. -----------------------------------------------------------------------------x --------------------------------------------------------.--------------------x CHANDRA CHANDRA MURPHY, MURPHY, Plaintiff, Plaintiff, -against-against- DECISION DECISION & & ORDER ORDER Index Index No. 58550/2017 58550/2017 Motion Motion Sequence Sequence 5 WESTCHESTER SOUTH BROADWAY WESTCHESTER ONE, LLC and 44 SOUTH BROADWAY PROPERTY, INC., PROPERTY, LLC, CUSHMAN CUSHMAN & WAKEFIELD WAKEFIELD BEACON BEACON CAPITAL CAPITAL PARTNERS, PARTNERS, BCSP BCSP IV PROPERTY PROPERTY MANAGEMENT MANAGEMENT LLC, Defendants. Defendants. -------------------------------------------------------------------------------x -------------------------------------------------------------------------------x 44 SOUTH SOUTH BROADWAY BROADWAY PROPERTY, PROPERTY, LLC, Third-Party Plaintiff, Third-Party Plaintiff, -against-againstCUSHMAN CUSHMAN & WAKEFIELD, WAKEFIELD, INC., Third-Party Defendant. Third-Party Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x 44 SOUTH SOUTH BROADWAY BROADWAY PROPERTY, PROPERTY, LLC, Second Third-Party Third-Party Plaintiff, Second Plaintiff, -against-against- ~~ .. ~." TEMCO SERVICE SERVICE INDUSTRIES, INDUSTRIES, INC ....,, TEMCO Second Third-Party Third-Party Defendant. Second Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The following following papers papers were considered in connection connection with with the plaintiff's plaintiff's The were read and considered order to show show cause cause for for an order order pursuant pursuant to CPLR CPLR 3025(b} 3025(b) and CPLR CPLR 203{f}, 203(f),. granting granting order leave to amend amend the the caption caption to reflect reflect the addition addition of of Temco Temco Service Service Industries, Industries, Inc. leave (UTemco") as a direct direct defendant; defendant; and granting granting leave leave to serve serve a second second supplemental supplemental ("Temco") 1 of 9 [*FILED: 2] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 summons summons and second second amended amended complaint, complaint, together together with with such such relief relief as the the Court Court deems deems just and proper. just proper ... Order A-R Order to Show Show Cause/Affirmation/Exhibits Cause/Affirmation/Exhibits A-R Affirmation Opposition Affirmation in Opposition Reply Affirmation Affirmation Reply Procedural and Factual Factual Background Background Procedural The plaintiff, plaintiff, Chandra Chandra Murphy Murphy ("Murphy"}, ("Murphy"), commenced commenced this this action action on May May 31, 31,2017, The 2017, against the the defendants defendants Westchester Westchester One, One, LLC and 44 South South Broadway Broadway Properties Properties LLC against SBP"), seeking seeking damages damages for for alleged alleged injuries injuries sustained sustained on December December 5, 2016, 2016, when when ("44 SBP"}, she she slipped slipped and fell at 44 S. Broadway, Broadway, White White Plains, Plains, New New York. York. ~he Court Court {Everett, (Everett, J.) previously previously granted granted the the plaintiff's plaintiff's motion motion for for leave leave to serve serve and ~he file a supplemental supplemental summons summons and amended amended verified verified complaint complaint to add add Beacon Beacon Capital Capital Partners ("Beacon"), ("Beacon"), BCSP BCSP IV Property Property Management Management LLC, and Cushman Cushman & Wakefield, Wakefield, Inc. Partners ("Cu:5hman"), ("Cu::;hman"), as direct direct defendants defendants to the the action. action. Jerome Jerome Montrone, Montrone, Senior Senior Vice Vice President President asset manager manager for for New New York York at Beacon, Beacon, testified testified that that 44 SBP SBP is owned owned by BCP Fund and asset Six, LLP, for for which which Beacon Beacon is an investment investment advisor. advisor. Cushman Cushman was was the the property property manager manager at the the time time of the alleged alleged incident incident and Temco Temco was was the cleaning cleaning subcontractor subcontractor hired by Cushman at the the time time of the the alleged alleged incident. incident. Cushman May 16, 2018, 2018, the the defendant, defendant, 44 SBP SBP filed filed a third-party third-party complaint complaint against against On May Cushman Cushman and on July July 10, 2018, 2018, 44 SBP SBP filed a second second third-party third-party complaint complaint against against Temco. The The parties parties executed executed a Stipulation Stipulation of of Discontinuance Discontinuance dated dated August August 14, 2019 2019 as Temco. to Temco Temco and a Stipulation Stipulation of of Discontinuance Discontinuance dated dated December December 6, 2019, 2019, as to Cushman Cushman with regard regard to the the third third party party complaint. complaint. 2 2 of 9 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 This Court Court granted granted 44 SB SSP's motion for for summary summary judgment pursuant to CPLR CPLR 3212, 3212, This P's motion judgment pursuant dismiss the the complaint complaint against against it, finding finding that that 44 SBP SSP established established that that it neither neither created created to dismiss condition, nor had actual actual or constructive constructive notice notice of of the the condition condition that that caused caused Murphy's Murphy's the condition, injuries. The The Court Court also also found found that that 44 SBP SSP did not expend expend any any control control over over the injuries. management of of the the building building nor the janitorial services and was was essentially essentially an out out of of janitorial services management possession owner/landlord owner/landlord and not not liable liable for for any any defects. defects. The The Court Court also also granted granted summary summary possession judgment Cushman, finding finding that that it neither neither created created the the condition, condition, nor nor had actual actual or judgment to Cushman, constructive notice notice of of the the condition condition that that caused caused Murphy's Murphy's injuries injuries and it did not owe owe a duty duty constructive care to the the plaintiff. plaintiff. The The Court Court also also denied denied that that part part of of Cushman's Cushman's motion motion seeking seeking to of care amend its answer answer to file cross-claims cross-claims against against Temco, Temco, since since Temco Temco was was no longer longer a party party amend action. to the action. The plaintiff plaintiff now now files files this this order order to show show cause cause for for an order order pursuant pursuant to CPLR CPLR The 3025(b) and CPLR CPLR 203(f), 203(f), granting granting leave leave to amend amend the the caption caption to reflect reflect the the addition addition of 3025{b) Temco as a direct direct defendant defendant and granting granting leave leave to the the plaintiff plaintiff to serve serve a second second Temco supplemental summons summons and second second amended amended complaint. complaint. supplemental The plaintiff plaintiff argues argues that that the the equities equities mandate mandate an amendment amendment of of the the pleadings pleadings and The that the the relation relation back back doctrine doctrine allows allows a claim claim asserted asserted against against a defendant defendant in an amended amended that pleading to relate relate back back to claims claims previously previously asserted asserted against against a co-defendant co-defendant for for statute statute of pleading .. limitations limitations purposes. purposes. The The plaintiff plaintiff argues argues that that where where a party party seeks seeks to add add a third-party third-party defendant that that has been been served served with all the prior prior pleadings pleadings in the the action, action, as required required by defendant CPLR 1007, 1007, the the third-party third-party is deemed deemed to have have actual actual notice notice of of the the plaintiffs plaintiff's potential potential claim claim CPLR 3 3 of 9 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 at that that time time and an amendment amendment of the complaint complaint may may be permitted permitted in the court's court's discretion discretion and a direct direct claim claim asserted asserted against against the third-party third-party defendant. defendant. The The plaintiff plaintiff asserts asserts that that Temco Temco cannot cannot assert assert prejudice prejudice or surprise surprise because because it participated participated in all depositions depositions and major major discovery, discovery, including including the the employee employee responsible responsible for for cleaning the floor floor where where the alleged alleged incident incident occurred, occurred, testifying testifying at a deposition deposition on March March cleaning 15, 2019. Further, 15,2019. Further, Temco's Temco's insurance insurance company company took took over over the defense defense and indemnification indemnification judgment of 44 SBP SSP on July July 11, 2019, 2019, after after completion completion of discovery discovery and while while summary summary judgment motions filed an application motions were were pending. pending. The The plaintiff plaintiff also argues argues that that Cushman Cushman has also also filed application to assert assert cross-claims cross-claims against against Temco Temco in its summary summary judgment motion. judgment motion. In opposition, opposition, Temco Temco argues argues that that it should should not be added added as a direct direct defendant defendant because because the plaintiff plaintiff cannot cannot satisfy satisfy the third prong prong of the relation-back relation-back test. Temco Temco argues argues that the the plaintiff plaintiff failed failed to address address why why she filed the note note of issue issue and certified certified the the case case that ready for for trial, prior prior to seeking seeking to amend amend the the complaint complaint and add Temco Temco as a direct direct ready defendant. Temco Temco asserts asserts that that the plaintiff plaintiff had approximately approximately eighteen eighteen months months to add defendant. Temco Temco as a direct direct defendant, defendant, but failed failed to do so. Temco further further argues argues that that the plaintiff plaintiff cannot cannot utilize utilize the relation relation back back doctrine doctrine Temco because because her cause cause of action action is dissimilar dissimilar to the prior prior causes causes of of action action asserted asserted against against it. Temco argues argues that that the plaintiff plaintiff cannot cannot rely on Cushman's Cushman's application application to file crosscrossLastly, Temco claims claims against against Temco, Temco, since since Temco Temco is no longer longer a party party to the case case and that that part of Cushman's Cushman's motion motion is moot. moot. plaintiff contends contends that that she meets meets all three three prongs prongs of of the relation relation back In reply, the plaintiff doctrine. Her counsel counsel states states that that Temco Temco admits admits that that the plaintiff plaintiff meets meets the requirement requirement for doctrine. 4 4 of 9 [*FILED: 5] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 the first first two two prongs, prongs, but but disputes disputes the third third prong. prong. The The plaintiff plaintiff argues argues that that the the emphasis emphasis in the third third prong The plaintiff prong of the doctrine doctrine is a showing showing that that the defendant defendant knew. The plaintiff asserts asserts Temco did in fact that that Temco fact know know or should should have known known that, that, but for for the mistake mistake in not moving moving to bring Temco Temco in as a defendant, defendant, it would would be sued as a direct direct defendant. defendant. The The plaintiff plaintiff further further argues argues that, in the cases cases proffered proffered by Temco, Temco, the plaintiff plaintiff failed failed to establish establish that that the proposed proposed defendant defendant was was united united in interest interest and then then also also failed failed to show show that that the proposed proposed defendant known that defendant knew knew or should should have have known that a direct direct action action should should be brought brought against against them. them. The Temco is no longer The plaintiff plaintiff also also argues argues that that it is irrelevant irrelevant that that Temco longer a party party in the action there is no proof action and there proof that that the plaintiff plaintiff ever ever signed signed off off on the stipulation stipulation of discontinuance, would indicate discontinuance, which which would indicate that that the plaintiff plaintiff agreed agreed to the the discontinuance. discontinuance. Next, the plaintiff does not impose duty on the party plaintiff asserts asserts that that CPLR CPLR 3025 3025 does impose a duty party seeking seeking leave leave to amend, amend, to provide provide a reasonable reasonable excuse excuse for the delay, delay, because because leave leave is to be freely freely given given Temco was upon just. The upon such such terms terms as may may be just. The plaintiff plaintiff further further argues argues that that Temco was actively actively involved process and the third-party third-party complaint involved in the discovery discovery process complaint against against Temco Temco provided provided notice that that it failed failed to comply comply with the provisions provisions of the contractual contractual agreement agreement and would would notice have responsibility plaintiff's claimed responsibility over over the plaintiff's claimed causes causes of action. action. Further, Further, the plaintiff plaintiff contends that that her her pleading's pleading's were were attached attached to the third-party third-party complaint, complaint, thereby thereby giving giving contends notice to Temco. Temco. notice Discussion Discussion The plaintiff plaintiff seeks seeks to amend amend the complaint, complaint, pursuant CPLR 3025(b), 3025(b), to assert assert The pursuant to CPLR claims against against Temco. Temco. Under Under CPLR CPLR 3025(b), 3025(b), leave leave to amend amend a pleading pleading shall shall be freely freely claims granted absent absent prejudice prejudice to the adverse adverse party. On a motion motion for for leave leave to amend amend a pleading pleading granted 5 of 9 [*FILED: 6] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 before cannot successfully successfully claim claim prejudice prejudice where where the the proposed proposed before trial, the opposing opposing party party cannot amendment would not change fundamental nature the allegations allegations in the original original amendment would change the fundamental nature of the pleading AD2d 381 [2d Dept where the opposing opposing pleading (Pepe (Pepe v Tannenbaum, Tannenbaum, 262 AD2d Dept 1999]), 1999]), or where facts (Pejcinovic of New New York, 258 AD2d AD2d 365 [1st party party has had full knowledge knowledge of the facts (Pejcinovic v City of Dept opposing theory theory of the case case is allowed. allowed. (Stow Dept 1999]) 1999]) and an opportunity opportunity to present present an opposing (Stow v City AD2d 45 [2d Dept City of of New New York, 122 AD2d Dept 1986]). 1986]). Here, 44 SSP SBP discontinued third-party claims claims against against Temco Temco on August August 14, discontinued the third-party was no longer action as of that that date. date. The The time time within within 2019. Thus, 2019. Thus, Temco Temco was longer a party party to the action 2019, which claims against against Temco, Temco, expired expired as of December which the plaintiff plaintiff had to file her claims December 5, 2019, three order to show show cause cause on March 2020, three months months prior prior to the plaintiff's plaintiff's filing of her order March 5, 2020, Temco as a direct direct defendant. defendant. Since Since "there "there is no seeking seeking to amend amend the complaint complaint to add Temco expired by the time time the the plaintiff for leave dispute that the statute statute of limitations dispute that limitations had expired plaintiff moved moved for leave amendment direct claim claim against against [Temco], whether the amendment to amend amend the complaint complaint to add a direct [Temco], whether may turns on whether whether the relation-back doctrine applies, applies, with the burden may be allowed allowed turns relation-back doctrine burden being Heights Medical Medical on the plaintiff that the doctrine doctrine applies" applies" (Rivera plaintiff to establish establish that (Rivera v Wyckoff Wyckoff Heights AD3d 522, 523-524 523-524 [2d Dept 2019] [citations omitted). Center, Center, 175 AD3d Dept 2019] [citations omitted). "To establish applicability of the relation-back doctrine, a plaintiff plaintiff must must establish the the applicability relation-back doctrine, demonstrate that that (1) both claims demonstrate claims arose arose out out .of of the same same conduct, conduct, transaction, transaction, or occurrence; (2) the new new party party is united united in interest interest with with the the original original defendant, defendant, and by occurrence; reason of that that relationship, relationship, can be charged notice of the institution institution of the action charged with notice action and reason prejudiced in maintaining maintaining his or her defense defense on t~e merits merits by virtue virtue of of the the will not be prejudiced delayed, and otherwise otherwise stale, stale, assertion assertion of of those those claims claims against against him or or her; and and (3) the new new delayed, 6 6 of 9 [*FILED: 7] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 party party knew knew or should should have have known known that, but for for a mistake mistake by the plaintiff plaintiff as to the identity identity of of the the proper proper parties, parties, the the action action would would have have been been timely timely commenced commenced against against him or her her as well" well" (Id. @ 524). 524). "The "The "linchpin" "linchpin" of of the the relation relation back back doctrine doctrine is whether whether the the new new defendant defendant had notice notice within within the applicable applicable limit~tions limit~tions period" period" (/d.). (Id.). Upon Upon viewing viewing the the evidence evidence in a light light most most favorable favorable to the the non-moving non-moving party party (Pearson AD3d (Pearson v Dix McBride, McBride, LLC, 63 AD 3d 895, 895 [2d Dept Dept 2009]), 2009]), and upon upon bestowing bestowing the the · benefit benefit of of every every reasonable reasonable inference inference to that that party party (Rizzo v Lincoln Lincoln Diner Diner Corp., 215 215 AD2d AD2d 546, 546 [2d Dept Dept 1995]), 1995]), the the Court Court finds finds that, that, while while the the first first prong prong of of the the relation-back relation-back doctrine doctrine applies applies in this this case, case, the the second second prong prong and third third prongs prongs do not not apply apply because because the parties parties are not not necessarily necessarily united united in interest interest and the plaintiff plaintiff did not establish establish that that she made made a mistake mistake as to the the identity identity of of Temco. Temco. "Parties "Parties are united united in interest interest only only where 'the interest interest of of the the parties parties in the the subjectsubjectwhere 'the . matter matter is such such that that they they stand stand or fall together together and that that judgment against one one will similarly similarly judgment against affect affect the the other"' other'" (Gatto (Gatto v Smith-Eisenberg Smith-Eisenberg, , 280 280 AD2d AD2d 640,641 640, 641 [2d Dept Dept 2001];Desiderio 2001];Desiderio v Rubin, AD2d 581, 583]). Rubin, 234 234 AD2d 583]). "Further, "Further, parties' parties' interests interests are united united only only where one is where one vicariously vicariously liable liable for for the the acts acts of of the the other" other" (/d.). (Id.). 44 SBP SSP and Cushman Cushman have have different different defenses defenses and have have already already been been granted granted summary summary judgment dismissing the the case case against against judgment dismissing them, while Temco's them, while Temco's employee employee testified testified to cleaning cleaning the the floor immediately prior prior to the floor immediately plaintiffs plaintiff's fall and failing failing to place place any warning warning signs. signs. However, However, even even if the second second prong prong applies applies in this case, case, the the third third prong prong does does not. 'Notice within the applicable 'Notice to the the new new defendant defendant within applicable limitations limitations period period is the the "linchpin" "linchpin" of of the relation-back relation-back doctrine, doctrine, and thus thus the third third prong prong of of the the test test focuses, focuses, inter inter alia, on "whether "whether 7 7 of 9 [*FILED: 8] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 limitations the limitations within the sue within failure to sue the failure that the the could have have reasonably reasonably concluded concluded that defendant could the defendant the matter 'and that [entity] at all 'and period meant meant that that there that [entity] that the matter has sue that intent to sue was no intent there was period Hosp. Regional Hosp. been laid to rest as far Good Samaritan Samaritan Regional concerned'"'(Shapiro v Good far as [it] is concerned""(Shapiro been 2007]). Dept 2007]). 444 [2d Dept 443, 444 Medical Center, Center, 42 AD 3d 443, AD3d Medical against Further, "where "where the party party suing "intentionally decides decides not to assert assert a claim claim against suing "intentionally Further, suing] the [party a party party known known to be potentially potentially liable, liable, there has been been no mistake mistake and the [party suing] there has limitations period the limitations claim after that claim should opportunity to assert assert that after the period second opportunity given a second should not be given 648 [2d Dept expired" (Losner (Losner v. v. Cashline, Cashline, L. P., 303 AD2d Dept 2003] 2003] quoting quoting Buran Buran AD2d 647, 648 has expired" Coupal, 87 NY2d NY2d 173, 177 [1995]). [1995]). v Coupal, Temco's identity In this case, there mistake as to Temco's identity and as the confusion or mistake was no confusion there was this case, deposition during testified at a deposition plaintiffs attorney attorney stated stated herself, Temco's employee employee testified during herself, Temco's plaintiffs added also previously The plaintiff discovery known to be potentially potentially liable. liable. The plaintiff also previously added was known thus was discovery and thus that defendant at that direct defendant Cushman as a direct direct defendant defendant and chose chose not to add Temco Temco as a direct Cushman expiration the expiration complaint prior time. There There was was ample ample time time for for the plaintiff amend the complaint prior to the plaintiff to amend time. failure the failure that the concluded that of limitations and Temco have reasonably reasonably concluded could have Temco could of limitations statute of the statute of the was no intent to sue limitations period period meant intent to sue sue it at all and that that there was that there meant that the limitations within the sue within concerned. far as it is concerned. the matter matter had been been laid to rest as far foregoing, it is Accordingly, based on the the foregoing, Accordingly, based amend leave to amend granting leave seeking an order ORDERED that order to show order granting cause seeking show cause the order that the ORDERED defendant; direct defendant; the reflect the Industries, Inc., as a direct Service Industries, Temco Service addition of Temco the addition caption to reflect the caption second amended summons and second and granting leave to the plaintiff to serve amended supplemental summons serve a supplemental the plaintiff granting leave complaint, is DENIED. DENIED. complaint, 8 8 of 9 [*FILED: 9] WESTCHESTER COUNTY CLERK 10/02/2020 02:32 PM NYSCEF DOC. NO. 157 INDEX NO. 58550/2017 RECEIVED NYSCEF: 10/02/2020 The The foregoing foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order Order of the Court. Court. Dated: White White Plains, Plains, New New York York Dated: September September 25, 2020 2020 HON. SAM D. WALKER, WALKER, J.S.C. J.S.C. 9 9 of 9

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