Opinion
712-TSN-2004.
Decided March 2, 2005.
The Dweck Law Firm, LLP, for the plaintiff.
Morvillo, Abramowitz, Grand, Iason Silberberg, PC, for defendant, Brenda Tanguay.
Santoriella, DiTomaso, Monaco, PC, for defendant, Yervant Varjabedian.
Plaintiff brings this action to recover for assault and battery as a result of an incident that took place on March 27, 2002 at the premises belonging to defendant Yervant Varjabedian. Defendant Brenda Tanguay, hereinafter "Tanguay" moves this court for an order pursuant to CPLR 3025(b) granting leave to amend her answer to include a counterclaim for assault and battery, and a cross-claim for negligence, against her co-defendant Yervant Varjabedian, hereinafter "Varjabedian." Plaintiff opposes the motion alleging among other things the expiration of the statute of limitations.
HISTORY
This action was commenced by the filing of a summons and complaint in Supreme Court on July 10, 2002 under Index No. 115494/02. Tanguay retained the Law Offices of Malapero Prisco, LLP who on August 27, 2002 served upon the plaintiff a verified answer with affirmative defenses and cross-claims. This verified answer did not include any counter claims.
Summons and complaint dated 7/10/02, Exh. 1, plaintiff's papers in opposition.
Verified answer dated 8/27/02, Exh. 1, Tanguay's moving papers.
Tanguay's verified answer contained denials and sixteen affirmative defenses. As her affirmative defenses Tanguay asserts the following which this Court considers relevant in deciding this motion:
"First Affirmative Defense
9. That the defendant acted in self defense.
Second Affirmative Defense
10. That defendant's conduct was justifiable.
Third Affirmative Defense
11. That defendant's conduct was not intentional.
Fourth Affirmative Defense
12. That defendant was in imminent danger of her life or grievous bodily harm.
Fifth Affirmative Defense
13. That defendant could not retreat in complete safety.
Sixth Affirmative Defense
14. That plaintiff provoked defendant's acts.
Ninth Affirmative Defense
17. That defendant did not confine plaintiff or cause plaintiff to be confined.
Eleventh Affirmative Defense
19. That plaintiff's action constituted a trespass."
In her cross-claim, Tanguay alleges, "26. That if plaintiff, Ida Schlossberg, was caused personal injuries and/or property damages, as alleged in the complaint through negligence other than plaintiff's own negligence, carelessness and recklessness, said damages were sustained due to the primary and active, negligent, careless and reckless acts of omission or commission of the co-defendant, Yervant Varjabedian with the negligence, if any of this answering defendant's being secondary and/or derivative only."
Following service of the answer the action was referred to Justice Edward H-Lehner, who on August 13, 2003 dismissed the action by reason of plaintiff's failure to appear at a status conference. By order dated January 16, 2004, the action was restored to the calendar of the court. In February 2004, plaintiff moved to strike Tanguay's answer for failure to appear for examination before trial. The motion was placed on the court's calendar for oral argument on April 16, 2004. On April 16, 2004, Tanguay defaulted and by an order dated May 7, 2004, her answer was stricken. Defendant moved to vacate her default and by order dated September 21, 2004 Justice Lehner granted her motion.
Justice Lehner's decision and order dated Sept. 21, 2004, Plaintiff's opp., Exh. 6.
Tanguay dismissed the Law Firm of Malapero Prisco, LLP, as her attorneys in March of 2004 and on August 2, 2004, retained Morvillo, Abramowitz, Grand, Iason Silberberg, P.C. to represnt her in this action. On October 8, 2004, her new attorneys made a motion for leave to amend Tanguay's answer to include a counterclaim. On November 10, 2004, Justice Lehner ordered the case transferred to Civil Court pursuant to CPLR § 325(d) while the motion was still pending. On November 29, 2004, Justice Lehner denied Tanguay's pending motion on the ground that "this action has been transferred to Civil Court pursuant to CPLR § 325(d)."
Defendant's moving papers, p. 2, Exh. 1, 2, 3.
Tanguay now moves this court for the relief sought in its previous motion before Justice Lehner. Plaintiff opposes the motion in its entirety alleging: 1.) "Law of the Case," as the same motion was denied by Justice Lehner on November 29, 2004; 2.) Statute of limitations as the statute of limitations, on the intentional tort of assault is one year and the statute expired in March of 2003; and 3.) prejudice to the plaintiff, in that she lacks insurance to pay if she were to lose on the counterclaim and she cannot assert a claim against defendant Varjabedian as that claim was previously dismissed.
The questions to be decided by this court are:
1.) Was this motion previously decided by Justice Lehner?
2.) Was plaintiff provided with sufficient notice in defendant's answer of the cause of action alleged in the amended answer's counter claim?
3.) Does the statute of Limitations prevent the assertion of this counter claim?
For the reasons that follow, this Court answers questions one and three in the negative and question two in the affirmative.
LEGAL ANALYSIS
Law of the Case:
Plaintiff asserts that Justice Lehner previously denied this motion and that defendant should be precluded from making the same motion before this Court. This argument is unpersuasive. A reading of Justice Lehner's decision on the previous motion for leave to amend decided November 29, 2004 clearly demonstrates that the Court did not decide on the merits. Justice Lehner simply declined to consider the motion because the case had been transferred and he no longer exercised jurisdiction over the action (See CPLR 325(d); Justice Lehner's decision, plaintiff's moving papers, Exh 2). Since the denial was not on the merits, the decision is not "law of the case," and the motion is properly before this court.
Leave to Amend:
CPLR § 3025(b) allows a party to amend his pleadings or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs or continuances.
Tanguay attempted to have plaintiff stipulate to the amendment of the answer, this having failed, she is now seeking the court's permission. It should be noted that it is not necessary for Tanguay to try to stipulate to the amendment before seeking leave of court. Nevertheless, this motion is properly before the court. According to CPLR 3025(b) an amendment may be sought at anytime, and shall be freely given unless the amendment is devoid of merit and unduly prejudices the party against whom the amendement is asserted (Goldstein v. Barco of California, Inc. 109 AD2d 817, 486 NYS2d 688(1985); Boccio v. Aspin Trucking Corp., 93 AD2d 983, 461 AD2d 787 (1983)). CPLR § 3025(b)is to be liberally construed to permit pleadings to be amended and it is state policy to allow the amendment in the absence of laches, undue prejudice and unfair advantage (McKinney's Consolidated Laws of New York Commentaries C3025:4, Book 7B p. 355; Leutloff v. Leutloff, 47 Misc2d 458, 262 NYS2d 736 (1965)). The inadvertent omission of something is frequent ground for amendment, although not the only ground. The main hurdle to be overcome by the movant is prejudice to the non-moving party; absent prejudice the amendment should be granted (See McKinney's Cons. Laws NY Commentaries C:3025:6, Supra at 356).
The prejudice contemplated in the statute is more than the mere omission in the original pleading of a cause of action, defense or counter claim. Prejudice arises when the non-moving party is surprised or barred from asserting a claim against additional defendants or from adding a third party defendant (See Perez v. Chutick Sudakoff, 50 FRD1 (SDNY 1970)). If the claim against any additional defendants or any third party defendant is barred by the statute of limitations then the liberal amendment provisions contemplated in CPLR § 3025(b) will not apply and it will be an abuse of discretion for the Court to grant amendment of the pleadings under those circumstances (See Pefanis v. Long, 114 Ad2d 806, 495 NYS2d 176 (1st Dept. 1985)). However, where the prejudice contemplated is that the non-moving party will have to overcome a meritorious claim, affirmative defense or Counter claim which she feared would be pleaded in the original answer, that is not the prejudice that bars an amendment. In that case the amendment should be granted because no prejudice is attributable to the mere omission to plead the claim, defense or counter claim in the original pleading (See McKinney's Cons. Law of NY Supra at 357).
The facts in this case demonstrate that Tanguay is asserting a counter claim against plaintiff which her previous attorneys omitted from her original answer. There is no prejudice to plaintiff in having to defend against a meritorious counter claim which she feared would be included in Tanguay's original answer but wasn't. This is not the type of prejudice that bars an amendment as no prejudice can be attributable to the mere omission to assert the counterclaim in the original pleading. (See Fahey v. County of Ontario, 44 NY2d 934, 380 N.E2d 146, 408 NYS2d 314).
NOTICE AND STATUTE OF LIMITATIONS
CPLR § 215(3) mandates that "an action to recover damages for assault, battery, false imprisonment, malicious prosecution, . . . shall be commenced within one year from the accrual of the cause of action."
The incident giving rise to the cause of action occurred on March 27, 2002 and the statute of limitations expired on March 27, 2003. Plaintiff timely commenced her action and Tanguay timely served her answer. Her answer was devoid of the counter claim she now wishes to assert but her problem is that the statute of limitation has expired.
CPLR § 203(F) states "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleadings were interposed, unless the original pleadings does not give notice of the transactions or occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."
The amended pleading will therefore relate back to the original pleading, and will be deemed interposed at the time, if the original pleadings gives the adversary notice. This is known as the "Relation Back Doctrine" and allows an amendment of the pleadings to assert a claim against a defendant or a counter claim against a plaintiff even when the statute of limitations has expired. This rule is based on the idea that a party who was notified of litigation concerning a given transaction or occurrence is entitled to no more protection from the statute of limitations. This notice, in effect, tolls the statute as to causes of action arising out of the occurrence initially pleaded. The length of the period is unaffected by the fact the claim is raised as a counter claim rather than in an independent action (Emerich v. Pfister, 74 Misc2d 728, 345 NYS2d 317; Andrews v. Donabella, 60 Misc2d 1007, 304 NYS2d 266; Coleman, Grasso and Zasada Appraisals Inc. v. Coleman, 246 AD2d 893, 667 NYS2d 828).
This doctrine enables a party to correct a pleading error by allowing a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for statute of limitations purposes as long as the two defendants are united in interest, the claims arose out of the same conduct, transaction or occurrence and the new party knew or should have known that but for an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against him as well (LL Plumbing Heating v. Depalo, 253 AD2d 517, 677 NYS2d 153 (2nd Dept. 1998); Nardi v. Hirsh M.D., 250 AD2d 361, 672 NYS2d 334 (1st Dept. 1998); Hemmings v. St. Marks Housing Assoc., L.P., 169 Misc2d 155, 642 NYS2d 1018).
This Court finds the Realtion Back doctrine clearly applies to the facts of this case. In her original answer, Tanguay asserted her first affirmative defense, "self-defense," this implies that she was attacked and had to defend herself; precisely what she indicates in her affidavit in support of her motion for leave to amend. A reading of the defenses asserted in her answer "Justification; Imminent danger of her life or grievous bodily harm; Not able to retreat in safety . . .," clearly suggest that her defense will be that plaintiff and not Tanguay was the aggressor on March 27, 2002. This clearly puts the plaintiff on notice of a possible counter claim which was mistakenly omitted from Tanguay's original answer. Similarly, plaintiff and co-defendant were on notice of the nature of Tanguay's cross-claim against Varjabedian.
Since her original answer provided plaintiff with notice of a possible counter claim, the amended answer relates back to the date of service of the original answer, making it timely and within the statute of limitations.
CONCLUSION
Leave to amend a pleading shall be freely granted upon such terms as may be just. An amendment may be sought at any time and shall be freely given unless it is without merit, or unduly prejudices or surprises the adversary. There is no prejudice in the mere omission to plead a claim, defense or counter claim in an original pleading and in that case it would be an abuse of discretion to not grant the amendment.
When the original answer gives the plaintiff notice of a counter claim, the "Relation Back Doctrine" allows an amendment to the answer to assert the counter claim even when the statute of limitations has expired. This court finds that Tanguay's answer gave notice to the plaintiff of the facts alleged in the counter claim and in her cross-claim. Therefore, the amended answer relates back to the original answer, and is timely asserted despite the expiration of the statute of limitations.
Justice Lehner's decision of November 29, 2004 was not on the merits of the motion. He declined to decide the motion because the action was transferred to Civil Court under CPLR § 325(d) and he no longer had jurisdiction, as such, it is not the law of the case.
Accordingly, defendant Tanguay's motion for leave to amend her answer to include a counter claim and cross-claim is granted in every respect. The proposed, verified amended answer, cross-claim, and counter claim attached to defendant's moving papers as Exh. 4 is deemed served. Defendant Tanguay shall file a copy of the verified amended answer along with a copy of this decision with the Clerk of the Court within 30 days from the date of entry of this decision. Plaintiff and co-defendant shall serve and file their answer to the counter-claim and cross-claim within 30 days from the date of service of this decision with notice of entry.
The foregoing shall constitute the Decision and Order of the Court.