Summary
discussing unity of interest with respect to relation-back of service
Summary of this case from Brown Associates, Inc. v. CRK Contracting of Suffolk, Inc.Opinion
May 31, 1996
Appeal from the Supreme Court, Erie County, Notaro, J.
Present — Pine, J.P., Fallon, Callahan and Davis, JJ.
Order unanimously reversed on the law without costs, motions granted and complaint against defendants Larry E. Tyree Co., Inc., and Mark A. Todd, doing business as The Todd Company, dismissed. Memorandum: Plaintiff was injured on February 14, 1991 when he fell on premises owned and operated by defendants Atlantic Refining Marketing Corporation (Atlantic) and Petroleum Marketing Services Corp. (Petroleum Corp.). On July 19, 1993, plaintiff commenced an action against Atlantic and Petroleum Corp. The title of the action also named "John Doe Excavators, Inc." as an unknown entity that had "completed certain excavation work" at the Atlantic and Petroleum Corp. premises. Plaintiff never obtained a court order for a substitute form of service upon John Doe Excavators, Inc. (John Doe). In January 1995 plaintiff discovered the identity of John Doe. On February 6, 1995, plaintiff obtained an ex parte order permitting plaintiff to amend the caption in the summons and complaint to identify John Doe as Larry E. Tyree Co., Inc. (Tyree) and Mark A. Todd, doing business as The Todd Company (Todd). A copy of the amended summons and complaint was left at Todd's office on February 13, 1995. Mark Todd, who was then living in Nevada, was never personally served. Tyree was served with the amended summons and complaint on February 17, 1995.
Supreme Court erred in denying the motions of defendants Tyree and Todd to dismiss the complaint against them. Plaintiff's action against Tyree and Todd was not commenced within the statutory three-year period for negligence actions ( see, CPLR 214; Di Marco v. Hudson Val. Blood Servs., 147 A.D.2d 156, 157). Plaintiff's claims against Tyree and Todd do not relate back to the timely action commenced against the two known defendants ( see, CPLR 203 [b]) because they are not united in interest ( see, Mondello v. New York Blood Ctr. — Greater N Y Blood Program, 80 N.Y.2d 219). Codefendants are united in interest only when one defendant is responsible for the acts or omissions of the other ( see, Capital Dimensions v. Oberman Co., 104 A.D.2d 432, 433). It is uncontroverted that Tyree and Todd were independent contractors retained by Atlantic and Petroleum Corp. to perform specified services. An independent contractor and the party who retains him are not united in interest because the latter is not vicariously liable for torts of the former (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C203:3, at 147).