Opinion
8442N Index 162142/15
02-19-2019
Brett BOSSUNG, etc., et al., Plaintiffs–Appellants, v. REBACO REALTY HOLDING COMPANY, N.V., et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants. Law offices of Arnold Stream, New York (Arnold Stream of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.
Law offices of Arnold Stream, New York (Arnold Stream of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Kapnick, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered May 25, 2017, which denied plaintiffs' motion pursuant to CPLR 3025(b) to amend the complaint to add The Board of the Walton Condominium as a defendant, unanimously affirmed, without costs.
Although plaintiffs sought leave to amend the complaint before the applicable statute of limitations had expired, their motion did not toll the statute, because they failed to annex the supplemental summons to their papers (see Karagiannis v. North Shore Long Is. Jewish Health Sys., Inc., 80 A.D.3d 569, 569, 914 N.Y.S.2d 666 [2d Dept. 2011] ). Nor did plaintiffs establish that their proposed amended complaint relates back to the date of service of the original complaint (see CPLR 203[b] ; Raymond v. Melohn Props., Inc., 47 A.D.3d 504, 504–505, 851 N.Y.S.2d 17 [1st Dept. 2008] ). The record is devoid of any evidence that defendant Gumley–Haft LLC, the manager of the building in which the incident occurred, and the Board, which owns the building, are vicariously liable for one another's acts (see Xavier v. RY Mgt. Co., Inc., 45 A.D.3d 677, 679, 846 N.Y.S.2d 227 [2d Dept. 2007] ) or that their defenses to the action would be the same, particularly because Gumley–Hart's defense that it was not the property owner and lacked exclusive control of the premises at the time of the incident is not available to the Board (see Mangual v. U.S.A. Realty Corp., 63 A.D.3d 493, 880 N.Y.S.2d 637 [1st Dept. 2009] ). That the Board agreed to name Gumley–Hart as an additional insured under its policy does not establish that the two entities are united in interest for the purposes of the relation back doctrine (see generally Cahn v. Ward Trucking, Inc., 68 A.D.3d 491, 890 N.Y.S.2d 530 [1st Dept. 2009] ).