Opinion
12821 Index No. 157106/16 Case No. 2019-5075
01-12-2021
Marc SEELER, Plaintiff–Appellant, v. AMA CONSULTING ENGINEERS, P.C., et al., Defendants, AMA Development Infrastructure, LLC, Defendant–Respondent.
Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York (Carol Ann Weinman of counsel), for appellant. Law Office of George P. Gambeski, Elmsford (Won J. Sohng of counsel), for respondent.
Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York (Carol Ann Weinman of counsel), for appellant.
Law Office of George P. Gambeski, Elmsford (Won J. Sohng of counsel), for respondent.
Renwick, J.P., Kern, Mazzarelli, Kennedy, Shulman, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered June 5, 2019, which granted defendant AMA Development Infrastructure, LLC's (AMADI) motion to dismiss the complaint, unanimously affirmed, without costs.
The motion court correctly found that defendant AMADI and defendant AMA Consulting Engineers (AMACE) were not united in interest for purposes of the relation back doctrine (see Buran v. Coupal, 87 N.Y.2d 173, 177, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ). While the two may have shared office space, and possibly a principal, they maintained separate employee rolls and tax identification numbers. AMADI was the general contractor on a project at which plaintiff was allegedly injured; AMACE was an engineering firm with no connection to the project. Thus, the two entities would not stand or fall together for the purposes of this action (see Higgins v. City of New York, 144 A.D.3d 511, 513, 43 N.Y.S.3d 1 [1st Dept. 2016] ; Brunero v. City of N.Y. Dept. of Parks & Recreation, 121 A.D.3d 624, 995 N.Y.S.2d 569 [1st Dept. 2014] ).
Nor can plaintiff rely on CPLR 1024 to substitute AMADI for the "John Doe" corporations named in the original pleading in this action. Both XYZ Corporation and ABC Corporation are described as entities that "manufactured, designed, marketed, sold, distributed, provided and/or supplied" electrical components involved in the claim to AMADI. As this description failed to apprise AMADI that it was an intended defendant, the summons and complaint are jurisdictionally defective ( Markov v. Stack's LLC [Delaware], 161 A.D.3d 453, 73 N.Y.S.3d 884 [1st Dept. 2018] ).