Opinion
4702/99.
Decided May 27, 2008.
The plaintiff is represented by Calcagno Associates LLC., by Craig A. Borgen, Esq., of counsel, the defendant New York City Transit Authority is represented by Wallace D. Gossett, Esq., the defendants George Campbell and Eric Campbell d/b/a George Campbell Painting Corporation and Carabie Corporation are represented by Biederman, Reif, Hoenig Ruff by Kimberly Johnson Glen, Esq. of counsel, the defendant the City of New York is represented by Michael A. Cardozo, Corporation Counsel of the City of New York.
In this action, plaintiff Dora Rinaldi moves to file an amended summons and complaint against second third-party defendant's George Campbell and Eric Campbell d/b/a George Campbell Painting Corp. (Collectively Campbells) and third third-party defendant Carabie Corporation (Carabie) to name them as direct defendants in the action.
The original complaint alleges that plaintiff was injured when she fell on the sidewalk in front of 7812 New Utrecht Avenue in Brooklyn, NY, on December 18, 1998. Plaintiff initially sued the City of New York. The City in March, 2001, instituted a third-party complaint against the New York City Transit Authority (NYCTA). While the moving papers contain sparse details of the relationship between the parties, it appears that NYCTA was brought into this case because there is a elevated subway line which runs on New Utrecht Avenue where the accident occurred.
On or about April 22, 2003, the NYCTA filed a second third-party complaint against the Campbells. The second third-party complaint was filed over (4) four years after the accident and alleges that the Campbells were contractors working at the accident site. The Campbells were paint contractors retained to paint the New Utrecht Avenue elevated subway line. Thereafter, the Campbells commenced a third third-party action against the defendant Carabie on October 26, 2007, a contractor at the accident site who operated a "man lift".
Plaintiff in its motion recognizes that the statue of limitations has run for plaintiff to bring a direct claim against the Campbells and Carabie. Plaintiff argues that the Court should permit the amendment pursuant to the CPLR § 203 relation back doctrine. Plaintiff argues that:
The defendants herein are united in interest in the within matter. The claims asserted against the new parties, Campbell and Carabie, and the claims previously imposed against the original named defendants arose out of the same conduct, and, by reason of the relationship between the parties, can be charged with such notice of the commencement of the action that the new defendants, Campbell
and Carabie, will not be prejudiced in maintaining a defense on the merits. Further, both Campbell and Carabie either knew or of should have known that, but for a mistake by the plaintiff as to identity of the proper parties, the action would have been brought against them as well.
Courts have utilized two lines of cases to analyze the relation back doctrine, St. Marks Housing Assoc., CPV . Blaked Construction Corp, 169 Misc 2d 155, aff'd 242 AD2d 284 (2d Dept 1997).
The first was enunciated by the Court of Appeals in Duffy v Horton Memorial Hospital, 66 NY2d 479. The Court held:
It is evident that when a third party has been served with the third-party complaint, and all prior pleadings in the action as required by CPLR 1007, the third-party defendant has actual notice of the plaintiff's potential claim at that time. The third-party defendant must gather evidence and vigorously prepare a defense. There is no temporal repose. Consequently, an amendment of the complaint may be permitted in the court's discretion, and a direct claim asserted against the third-party defendant, which, for the purposes of computing the Statute of Limitations period, relates back to the date of service of the third-party complaint (see McLaughlin, Practice Commentaries, McKinney's Con Laws of NY, Book 7B, C203:11, p 124;Siegel, NY Prac § 49, at 17-18 [1985 Supp]; 6 Wright and Miller, Federal Practice Procedure § 1498).
When we apply the Duffy test, it is clear that the Campbells were first impleaded into the case on April 22, 2003, and Cararbie was impleaded on October 26, 2007; therefore, both third-party defendants were brought into the case after the statute of limitations for plaintiff to assert a direct claim against them had expired. Utilizing the Duffy test, plaintiff's motion fails.
The second line of cases was set forth by the Court of Appeals in Buran v Coupal, 87 NY2d 173 as follows:
Under this standard, the three conditions that must be satisfied in order for claims against one defendant to relate back to claims asserted against another are that: (1) both claims arose out of the same conduct, transaction or occurrence, (2) the party is "united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the
merits and (3) the new party knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well.
The first prong of the standard is straight forward-the clams arise out of the same accident. Plaintiff meets this prong.
The second prong the new party is "united in interest" with the original defendants-in this instance, the original third party defendant NYCTA, is problematic. Plaintiff's moving papers are rife with conclusory statements which seem tailored to comply with the Buran case but are woefully devoid of evidence to support plaintiff's claim that "defendants herein are united in interest". Plaintiff dose not provide the Court with any documents to support this assertion. Plaintiff claims "the complaint filed by the NYCTA set forth the contractual nature of the relationship between the NYCTA and Campbell," plaintiff than doesn't supply the Court with this pleading. (It is provided to the Court in the Campbells' opposition papers). The second-third party complaint simply alleges that Campbell "was a contractor working in and about" the accident site.
In it's answer, Campbell admits that it "was retained by the Transit Authority to paint the New Utrecht Avenue elevated subway line" . The third-third party complaint against Carabie alleges a contract between Carabie and Campbell. No allegations are made as to the relationship between Carabie and the NYCTA. Essentially, plaintiff is arguing because Campbell had a contract with the NYCTA they are "united in interest".
Generally unity of interest will be found where one of the parties is vicariously liable for the conduct of the other ( Raschel v Rigs, 69 NY2d 694. Here, where it appears that Campbell was an independent contractor for the NYCTA, and based on the record before the Court, there is no basis for the Court to conclude that either party is vicariously liable for the conduct of the other. ( Kavanaugh v Nussbaum, 71 NY2d 535 [1988 ], L L Plumbing Heating v DePalo, 235 AD2d 517.) No evidence has been set forth which would lend support to plaintiff's claim that the NYCTA and Carabie are united in interest.
Plaintiff has failed to meet the standard set forth in Buran for either Campbell or Carabie. Accordingly, the motion to file an amended complaint is denied.
The foregoing constitutes the decision and order of the Court.