O'Donnell v Luigi's Pizzeria Inc.

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O'Donnell v Luigi's Pizzeria Inc. 2021 NY Slip Op 33827(U) March 19, 2021 Supreme Court, Nassau County Docket Number: Index No. 608762/2019 Judge: Leonard D. Steinman 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: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 INDEX INDEX NO. NO. 608762/2019 608762/2019 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------,--·-.--------·--.-----,-----------..:x. EILEEN O'DONNELL, Plaintiff, IAS·Part 8 Index No. 608762/2019 Motion Seq. Nos. 001-002 -againstLUIGI'S PIZZERIA INC., LUIGI;S PIZZERIA RESTAURANT, INC., JOHN DOE INC., and 526 JERICHO TPKE LLC d/b/a LUIGI'S PIZZERIA, Defendants. ~---------------·-- ·---------~------x· LEONARD D. STEINMAN, J. The following submissions, in addition to any memoranda of law, were reviewed in preparing this.Decision and Order: Defendant J erichb' s Notice of Motion, Affirmation & Exhibits ..................... 1 Plaintiff's Notice of Cross-Motion, Affinnation & Exhibits ................ ; ..• , .•. :.2 Defendant's Affirtnation in Opposition ....................... ; ..... c. ••••••••• , • , ••••• .,.3 Plaintiff's Reply AffirmatiolJ. ...............................•.............................4 This is an action for personal injuries plaintiff allegedly sustained onJuly l, 2016 as a result of a slip and fall at a pizzeria located at 526 Jericho Turnpike in Mineola, New York. Defendant 526 Jericho Turnpike LLC dip/a Luigi's Pizzeria now moves to dismiss the action purst1ant to CPLR 3211 (a)(5) and (8}on the grounds that (a) it was hot timely served with tlle s1,1mmons and complaint·and (b).the statute of limitations has run as against it. Plaintiff ~ross-moves (1) for leave to amend the corriplaintto proper,ly include 526.Jericho.as a defendant~ (2) for.~.extension of time to serve the complaint against 526Jericho: and (3) for [* 1] 1 of 7 , ________ ,.,_,_., ...,.,,,.,,,,,,,,,,.,.' FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 INDEX INDEX NO. NO. 608762/2019 608762/2019 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 an order deeming the amended complaint timely served. For the reasons set forth herein, the motion is granted and the cross-motion is denied. FACTUAL BACKGROUND This court has been provided with no facts relating to the incident thatprecipitated this lawsuit apart from the bat'e-bones allegations of the complaint: plaintiff was peacefully uponthe premises located at 526 Jericho Turnpike when she "was caused to slip and/or trip and/orJallon a slippery and/or otherwise defective floor'' in thepremises as aresult of the "negligence, carelessness and/or recklessness" of the defendant(s). It appears from an affidavit submitted by the general manager of 526 Jericho that the corporation does business at the location as "Luigi's Pizzeria." 526.Jericho has continuously operated the pizzeria in question since2012. It has no connection to any corporate entity known as Luigi's Pizzeria. Plaintiff originally commenced this action on June 2 7, 2019 against Luigi's Pizzeria Inc., Luigi's Pizzeria Restaurant, Inc. and JohnDoeinc. Ort December 6, 2019, i.e., 162 days later, plaintiff purportedly served the summons and complaint upon Nick Spinelli, an individual identified in the affidavit of service as the manager of Luigi's Pizzerialnc., who purportedly was authorized to accept service. Spinelli was a shift supervisor employed by 526Jericho. On March20, 2020,pursuantto Executive Order202.8; all time limitations set forth in the CPLR weretolled;the toll extended through November], 2020 pursuant to subsequent Executive Orders, cuhninating in Executive Order 202,67. At some unknown time after the pleadings were purportedly served, plaintiff's c9unsel somehow was in communication with 526 Jericho's insurance carrier whjch, on 2020, notified plaintiff's counsel that 526 Jericho was tmaware of any slip and fall at. its location, that 526 Jericho was not named in the complaint and stated:. "Please confirm •April 9, with your· client and if it [the incident] ls. at 011r loca,tion, please file an amended complaint." 2 [* 2] 2 of f 7 FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 INDEX INDEX NO. NO. 608762/2019 608762/2019 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 On June 23, 2020,plaintifffiled a supplemental/amended summons and complaint which purported to add 526 Jericho as a defendant Plaintiff did not seek leave of court before adding this new party. Plaintiff served 526 Jericho by service upon the Secretary of State on June 24, 2020. 526 Jericho served anAnswer to the·Atnended Complaint on November 18,2020. The Answer ·contained twenty affirmative defenses, but the failure to obtain courtJeave to amend the -complaint was not one of them. 5 :?6 Jericho did assert a defense pursuant to CPLR 32ll(a)(8)that service was not properly effected. 526 Jericho also asserted the statute of limitations as a defense. LEGAL ANALYSIS The posture and history of this action presents a number of procedural challenges to the plaintiff. First, plaintiff waited until days before a three-year statute of limitations expired to file her lawsuit. Second, plaintiff did hot sue the correct entity. Third, plaintiff failed to timely serve proce_ss wit11inthe statutory period. Fourth, plaintiff attempted to amend her summons artd complaint without court permission even though the time for her to do so had expired, Although plaintiff has cross-moved to amend the complaint, that motion is moot . . because the complaint has already been amended and 526 J erichoanswered the complaint Although plaintiff didnot obtain the necessary court leave to arnep.dher complaint, 526 Jericho waived this defense by answering the amended pleading without objecting to the unauthorized amendment. See Jordan v; Altagracia Aviles, 289A.D.2d.532{2dDept. 2001); Nassau County. v. Inc. Village ofRoslyn, 182 A.D.2d 678 (2d Dept. 1992}. 526 Jericho's motion to.dismiss is based.upon the untimelip.ess ofpJaintiff's claim,-·not the. unauthorized 11ature of the arnendment. 3 [* 3] _________ ...._......__._ 3 of 7 _____________________________________________________________ _ FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 INDEX INDEX NO. NO. 608762/2019 608762/2019 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 That leads the court to an analysis of the timeliness of plaintiffs claim against 526 Jericho. Undoubtedly,. the statute of limitations had run by the time plaintiff amended her complaint to add 526 Jericho as a party. Pursuant to CPLR § 214(6), a negligence action must be commenced within three years of the date of the accident Plaintiff argues that her amended complaihtshould relate back to the filing of her initial complaint pursuant to CPLR §203{f). That statute provides that a claim asserted in an amended pleading is deemed interposed at the time the claims in the original pleading were interposed unless "the original pleading does not give notice of the ... occurrences , ... to be proved pursuantto the amended pleading.'' To establish the applicability ofthe doctrine,. the plaintiffnmst demonstrate. 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·canbe charged with such notice of the institution of the action that it will not be prejudiced in maintaining its defense on the merits;· and {3) the new defendant knew or should have known that, but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against it as well. Buran v. Coupal, 87 N.Y.2d 173, 178 (1995); Mondello v. New YorkBlood Center,.Greater New York Blood Program, 80 N.Y.2d 219 (1992). 526 Jericho is :not united in interest with any of the defendants named in the original complaint and plaintiff cannot seriously contend otherwise. See Nossov v. Hunter Mountain, 185. A,D.3d 948 (2d Dept. 2020); Tricoche v. Warner Amex Satellite Entertainment. Co,, 48 A.D.3d 671 (2d Dept. 2008); Rinzler v. Jafco Associates; 21 A.D.3d360 (2d Dept,2005). Indeed, plaintiff has :q.evet explained how it crune to pass ~hat she named the Luigi entities as ' defendants and it is unknown if th~ original defendants even exist. See Ferrara v. Ztsfein;. 168 A.D. 3d 682 (2d Dept. 2019)(party cannot be deemed united in interest with a fictional 4 [* 4] 4 of 7 FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 INDEX INDEX NO. NO. 608762/2019 608762/2019 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 ''John Doe" defendant). As a result, the amended pleading does not relate back to plaintiffs original pleading. 1 It is important to note that there is no evidence: that 526 Jericho received notice that plaintiffintended to sue anyone within the limitations period, See, Schiavone v. Fortune, 477 U.S. 21 (1986).2 The service of the original complaint in December 2019 took place over five months after the limitations period had expired and 40 days after the statutory deadline for such service. .5 2 6 Jericho had no notice of the plai.ntiff s claims until, at best, nearly 3 1/2 years after plaintiffs alleged fall, "leading to an inference of substantial prejudice." Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 107 (2001). Finally, the amended complaint cannot relate back to the filing date of the original complaint for the additional reason that the complaint itself was subjectto dismissal. See Goldberg v. Camp Mikan-Recro, 42N.Y.2d 1029 (1977)(there must be a valid complaint to which the amended pleading can relate back); Because the Original complaint was 11ot timely served-·as 526 Jericho points out-and plaintiff has not provided a sufficient basis to retroactively extend the time to serve the initial pleading (as further discussed below), the amended pleading cannotrelate back to the original complaint. 1 Plaintiff places greatweight on the fact that a claims examiner employed at 526 Jericho's insurance ·company suggested to plaintiffthat sheamend:her complaint ifshe intendedtnsue 526 Jericho. The emails from the fasurer attached to plaintiff's papers, dated in April 202ff--long after the lim itations·period had run-reflect that 526 . Jericho was unaware cifplaintiff's purpcirtedfall over3 years earlier and questioned whether plaintiff had actually fallen at526 Jericho Turnpike onome other location. Of course, in alI events, a claims examiner's invitation to file an amende.d complaint does ncit equate to a waiver ofa staiute of limitations defense. 2 New York's three~part test to determine Whether an amended complaint relates back to the filing of the original complaintw8.\i adopted largely from the federal law. See Monde/fov. New York Blood Center-Greater New York: BloodProgram, 80 N;Y.2d at 226. The Supre1i1e Court affinn.ed the dismissal of an action a.s untimely inSchiqyone bec.ause the added defendant was. riot given notice ofthe ciahn prior to the expiration ofthe Jim itations period .. Thereafter, Fed.R.Civ.P. l5(c) was amended in 1991 to extend the time within 'which thfl new party had to be aware of the action: 120 days from the. filing of the original CO:ritplaint. Se.e Aslanidis v. U.S. Lines, inc., 7 F:3 d. I067, · 1075-76.(1993). Thel20-dayexiension correlates to the time in.Whk:h acomplaihfhas to be served under both federai a.i'Jd state law. Here; it is not asserted that 526 jericho had notice of phiintifr s claim within eitherihe · limitations period or 120 days after the filing of,the odginal complaint. 5 5 of 7_ _ _ _ _ _ _ _ _ ·_·····-·······-·-···.. ···· .......... . [*_ 5]_ _ _ _ _;..,__ _ _ _ _ _ _ _ _ _ _ _ _ _....;5~o~f=---:7 INDEX INDEX NO. NO. 608762/2019 608762/2019 FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 The supplemental summons and amended complaint did not·purport to·merely correct a misnomer but added a new defendant after the expiration of the statute of limitations. Tricoche, 48 A.D.3d at 673; Even if plaintiff's actions are viewed as an attempt to substitute the proper name ofan erttity that she had already sued artd served-i. e;, substitute· 5 26 Jericho for Luigi's Pizzeria Inc., Luigi'•s Pizzeria Restaurant, Int; and/or John Doe Inc., the actionmust still be dismissed. While CPLR 305{c} may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendartt who was not properly served; Nossov v. Hunter Mountain, 185 A.D.3d at 948;Tokhmakhova v. 11.S. Brothers JI Corp., 132 A.D.3d 662 (2d Dept. 2015}. Plaintiff did notprnperly serve any ofthe original defendants within 120 days as required by CPLR 306-'b. Although plaintiff now belatedly seeks an extension of time to effect such service-. an application made 14 months after the service deadline had expired-she fails to describe any circumstance justifying an extension under eitherthe "'good cause" or "interest of justice" standards. See Leader v. Maroney, Ponzini & Spencer~ 97 N.Y.2d at 107. Although it is tru,e that the expir~tion of the statute of limitations is an important factor in deterrriining Whether an extei1sion should be grantedjrt the interest ofjustice (see Bumpus v. N.Y. City TransitAuth., 66 A.D.3d26{2nd Dept. 2009), plaintiffmust sdU provide the court with enough information so thafit can analyze ''the factual setting of the case and a balancing of the competing interests presented" and consider plaintiff's ''diligence, or lack thereof ... the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant." Federal Natfo,ralMor(gqge Assoc. v. Cassis, 187 A.D.3d 1145(2d Dept, 2020). As previously discussed, 526 Jeticho is prejudiced by plaintifr s unexplained deiay. Leader v; Maroney; Ponzini & Spenper; 97 N.Yi2cl at 107. merits of plaintiff's No facts co11ceroing the claim are presented. Plaintiffdid not seek an extertsfon until faced with a 6 6 of 7_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ ---··--···········~--------------~6...::o::..::f:......:.7 [* 6] INDEX INDEX NO. NO. 608762/2019 608762/2019 FILED: NASSAU COUNTY CLERK 03/23/2021 02:14 PM NYSCEF DOC. DOC. NO. NO. 25 RECEIVED NYSCEF: NYSCEF: 03/22/2021 03/22/2021 motion to dismiss. .And, as previously noted, no shovving of plaintiff's diligence is even attempted. Plaintiff does not seek to rely on CPLR 1024 to save her claims and such reliance \Yould be fruitless., To successful.ly sue an unknown party pursuant to CPLR 1024 plaintiff is required to establish that she made timely, diligent efforts to identify the correct party before the statute of limitations expired and befbre comn~encement of the action. Bu1npus v. N. Y Ci(V Transit Auth., 66 A.. D.3d at 29-30; see also Cornice v. Justfn ··s Restaurant, 78 A.D.3d 641 (2d Dept. 2010); Walker v. Hormann Flexon; LLC, 153 A.D..3d 997 (3d Dept. 2017), Here, plaintiff has failed to describe ,:vhat efforts,. if any, were made to ascertain the owner or manager of the pizzeria during the three years pr-ior to bringing suit or the year foHmving suit prior to the amendment For all of the foregoing reasons, the motion to dismiss is granted ,md tht~ cross-motion is denied. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this couit. Dated: March 19, 2021 Mineola, Ne\,,. York .ENTER• . ! .}).. ENTERED . j. Mar 23 2021 LEONARD·D. STE-INlVIAN, J.S.C. ,' ,. : NASSAU COUNTY COUNTY CLERK'S OFFICE 7 [* 7] ···.·.·.·.·-·-········· ....,........................................ 7 of 7 ·········•----........................................-............................................................................................... ..

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