Opinion
Index No. 514316/2019
04-27-2023
Edward Vasquez, Plaintiff, v. Tri-State Lumber Ltd., Tri-State Lumber Inc., Rise Development Partners LLC, Rise Conrete LLC, Happy Living Development LLC and West 37th St LLC, Defendants. Tri-State Lumber Ltd., Third-Party Plaintiff, v. Rise Development Partners LLC, Rise Conrete LLC, Happy Living Development LLC and West 37th St LLC, Third-Party Defendants. Happy Living Development LLC and West 37th St LLC, Second Third-Party Plaintiffs, v. Capital Concrete NY Inc., Second Third-Party Defendant.
Liakis Law, New York City (Boris Bernstein of counsel), for Edward Vasquez, plaintiff. Gannon, Rosenfarb & Drossman, New York City (Angelo Rios of counsel), for Tri-State Lumber Ltd. and Tri-State Lumber Inc., defendants. Gartner & Bloom, New York City (Ethan Ruby of counsel), for Happy Living Development LLC and West 37th ST LLC, defendants. Fuchs Rosenzweig PLLC, New York City (Mehreen Hayat of counsel), for Capital Concrete NY Inc., second third-party defendant.
Unpublished Opinion
Liakis Law, New York City (Boris Bernstein of counsel), for Edward Vasquez, plaintiff. Gannon, Rosenfarb & Drossman, New York City (Angelo Rios of counsel), for Tri-State Lumber Ltd. and Tri-State Lumber Inc., defendants.
Gartner & Bloom, New York City (Ethan Ruby of counsel), for Happy Living Development LLC and West 37th ST LLC, defendants.
Fuchs Rosenzweig PLLC, New York City (Mehreen Hayat of counsel), for Capital Concrete NY Inc., second third-party defendant.
AARON D. MASLOW, Justice of the Supreme Court.
The following numbered papers were read on this motion:
NYSCEF Document Nos. 163-178 (notice of motion, affirmation in support, exhibits, and affirmation of service
NYSCEF Document Nos. 181-188 (affirmation in opposition and exhibits)
NYSCEF Document No. 192-193 (reply affirmation, word-limitation certification, and affirmation of service)
Issue Presented
Where the 228-day period created by former Gov. Andrew Cuomo's Executive Orders pertaining to statutes of limitations issued during the COVID-19 pandemic (referred to herein as the "Cuomo Period") commenced after a personal injury negligence cause of action accrued and ended before three years had elapsed from the accrual date-a three-year period being applicable to causes of action for personal injuries-did said Executive Orders extend the three-year statute of limitations by 228 days?
Background
This is an action to recover damages for personal injuries allegedly sustained by Plaintiff Edward Vasquez from debris which fell from a vehicle owned, operated, or controlled by Defendants at a construction site while he was walking on the sidewalk on April 12, 2019. Plaintiff filed his original Summons and Verified Complaint on June 27, 2019. The named Defendants were Tri-State Lumber Ltd. and Tri-State Lumber Inc. On September 5, 2019, Defendants Tri-State Lumber Ltd. and Tri-State Lumber, Inc. interposed an answer.
On September 18, 2019, Defendant Tri-State Lumber Ltd., in the capacity as a Third-Party Plaintiff, commenced a third-party action against Third-Party Defendants Rise Development Partners LLC, Rise Concrete LLC, Happy Living Development LLC, and West 37th Street LLC. On August 14, 2020, Plaintiff filed a Supplemental Summons and Amended Complaint to include direct causes of action against Rise Development Partners LLC, Rise Concrete LLC, Happy Living Development LLC, and West 37th Street LLC.
On September 24, 2021, Defendants Happy Living Development LLC, and West 37th Street LLC, in the capacity as Second Third-Party Plaintiffs, commenced a second third-party action against Capital Concrete NY Inc., claiming that the latter had agreed to defend, indemnify, and hold them harmless.
Throughout the aforesaid period of time following the initiation of this action, various parties filed their responses which included counterclaims and cross-claims, but these details are tangential for the purposes of the present discussion.
Accordingly, prior to this motion, the caption in this action read as follows:
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EDWARD VASQUEZ, Plaintiff, -against
TRI-STATE LUMBER LTD., TRI-STATE LUMBER INC., RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Defendants.
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TRI-STATE LUMBER LTD., Third-Party Plaintiff, -against
RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Third-Party Defendants.
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HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Second Third-Party Plaintiffs, -against
CAPITAL CONCRETE NY INC., Second Third-Party Defendant.
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On April 22, 2022, Plaintiff moved for leave to supplement its Summons and amend its Complaint to now include a direct cause of action against Capital Concrete NY Inc., the entity brought into this lawsuit as a Second Third-Party Defendant by Defendants and Second Third-Party Plaintiffs Happy Living Development LLC, and West 37th Street LLC. Plaintiff alleged that Capital Concrete NY Inc., owned, operated, supervised construction at, and maintained and managed, the location where Plaintiff sustained his injuries, and caused or created the alleged negligent conditions.
Plaintiff's motion, now before this Court as Motion Sequence No. 5, also sought leave to serve Capital Concrete NY Inc.; to deem its Second Supplemental Summons and Amended Verified Complaint (now including Capital Concrete NY Inc. as a direct Defendant) served nunc pro tunc, and to amend the caption accordingly.
Capital Concrete NY Inc. opposed Plaintiff's motion herein, arguing that the time for Plaintiff to have moved for the relief of adding it as a direct Defendant expired on April 12, 2022, which was three years after the cause of action accrued (on April 12, 2019). The three-year statute of limitations for personal injury actions pursuant to CPLR 214 (5) strictly applied, argued Capital Concrete NY Inc. April 22, 2022, when the within motion was filed, was ten days past April 12, 2022.
Defendants Tri-State Lumber Ltd. and Happy Living Development LLC appeared at oral argument but took no position.
Discussion
A. Relation-Back Doctrine
A supplemental summons and amended complaint may be served after the expiration of the statute of limitations. If a claim is made outside of the original statute of limitations, it may nonetheless be considered timely if it relates back to the original pleading (s ee Monir v Khandakar, 30 A.D.3d 487 [2d Dept 2006]). In order to apply the relation-back doctrine it must be demonstrated that: (1) "all of the claims must arise out of the same conduct, occurrence, or transaction"; (2) the parties must be united in interest "so that they can be charged with notice of the institution of the lawsuit and not be prejudiced in maintaining their defense on the merits"; and (3) Defendants "must have actually or constructively known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well" (id. at 488, citing Buran v Coupal, 87 N.Y.2d 173, 178 [1995]; Mondello v New York Blood Ctr. Greater NY Blood Program, 80 N.Y.2d 219, 226 [1992]). Here, the parties do not dispute that the claims arise from the "same conduct, occurrence, or transaction," as all injuries sustained by the Plaintiff were caused by the same falling debris. Accordingly, the first element has been met.
However, the remaining two qualifications are problematic. The courts have clarified the second element by stating that parties are united in interest only where the interest in the subject matter of the action is such that their defenses will be the same and they will either stand or fall together with respect to the plaintiff's claim. When parties are united in interest, the judgment against one will similarly affect the other. (Losner v Cashline, L.P., 303 A.D.2d 647, 648 [2d Dept 2003], citing Prudential Ins. Co. v Stone, 270 NY 154 [1936]; Gatto v Smith-Eisenberg, 280 A.D.2d 640 [2d Dept 2001]; Desiderio v Rubin, 234 A.D.2d 581 [2d Dept 1996]); Connell v Hayden, 83 A.D.2d 30 [2d Dept 1981]). The Second Third-Party Summons and Complaint, as filed by Defendants Happy Living Development LLC and West 37th St LLC, states, in relevant part, "That the incident complained of by Plaintiff, if it in fact occurred, and if it in fact occurred in the fashion alleged by Plaintiff, was caused by, arose out of, resulted from and/or occurred in connection with the performance of the work, labor and services contracted for by CAPITAL and/or was performed by its agents, servants, employees, and/or subcontractors" (NYSCEF Doc No. 99, ¶ 26). This manifests that these Defendants do not share the same defenses as Capital Concrete NY Inc. The second prong of the relation-back doctrine does not apply.
Furthermore, the Second Department has held that when a plaintiff knew that another defendant was involved in the action but failed to amend the complaint prior to the expiration of the statute of limitations, the additional claims did not relate back to the filing date and the amended complaint is thus untimely (s ee Contos v Mahoney, 36 A.D.3d 646 [2d Dept 2007], citing Buran, 87 N.Y.2d 173; Monir, 30 A.D.3d 487 [2d Dept 2006]; Snolis v Biondo, 21 A.D.3d 546 [2d Dept 2005]; Hughes v Bi Feng Nie, 12 A.D.3d 406 [2d Dept 2004]). Accordingly, in order to maintain timeliness, plaintiffs must bring all claims against all known parties within the three-year statute of limitations, with few exceptions. In the instant case, Plaintiff's counsel stated in open court that his client had learned of Capital Concrete NY Inc.'s involvement in the action on or about September 30, 2021, prior to the original expiration of the statute of limitations on April 12, 2022. Plaintiff's Complaint could have been amended before April 12, 2022.
Therefore, since two elements of the relation-back doctrine do not apply, Plaintiff's attempt to bring in Capital Concrete NY Inc. as a direct Defendant would succeed only if the Cuomo Period provided it with additional time.
B. Cuomo Period
Plaintiff relied on the series of Executive Orders issued by Former Gov. Andrew Cuomo, which first took effect on March 20, 2020 and expired on November 3, 2020. They related to time limits for legal action during the beginning of the COVID-19 pandemic. Plaintiff asserted that the Cuomo Period of 228 days was a toll which halted the continuation of any statute of limitations then in effect; the statute of limitations continued on the date of the expiration of the Cuomo Period, and an additional 228 days are added on to what otherwise would have been the end of the three years running from when the cause of action accrued. In other words, maintained Plaintiff, even if the 228-day Cuomo Period fell completely within what otherwise would have been a simple three-year statute of limitations, the 228 days is still added on to the end of the three-year period of time from when the cause of action accrued. In effect this would result in a statute of limitations of three years plus 228 days. As applied to the case herein, the statute of limitations for a cause of action accruing on April 12, 2019 (the date of the subject accident), which would have expired on April 12, 2022 in the normal course of events, actually expired on November 26, 2022. Since this motion for leave to add Capital Concrete NY Inc. as a direct Defendant was filed on April 22, 2022, and this was prior to November 26, 2022, Plaintiff's position was that it met the deadline for adding Capital Concrete NY Inc. as a direct Defendant.
Not so, countered Capital Concrete NY Inc. The Cuomo Period was not a toll, as Plaintiff argued. Rather, the Cuomo Period was a suspension of the statute of limitations. On March 20, 2002, when Gov. Cuomo's first Executive Order on the subject was issued, it merely suspended the statute of limitations, i.e., placed a temporary halt to it. When the Cuomo Period ended on November 3, 2020, the statute of limitations merely continued and ran until its expiration on the three-year anniversary of the subject accident, April 12, 2022. Capital Concrete NY Inc. posits that Plaintiff did not need the benefit of 228 days after April 12, 2022, since it could have added another Defendant once the Cuomo Period ended on November 3, 2020, and until April 12, 2022. This is distinguishable from situations where a statute of limitations expired within the Cuomo Period, argued Capital Concrete NY Inc. As the Cuomo Period was a suspension-not a toll-if any statute of limitations expired during the Cuomo Period, a plaintiff could file an action after the suspension was lifted, i.e., on the day following the end of the Cuomo Period. In essence, Capital Concrete NY Inc. poses a policy question: Why should a plaintiff gain an additional 228 days past the three-year expiration date of the statute of limitations, when said three-year statute of limitations applied herein expired well past the end of the Cuomo Period. There was enough time within which Plaintiff could have added Capital Concrete NY Inc. after the Cuomo Period ended and before the three-year statute of limitations expired.
The question posed in the within motion is whether Gov. Cuomo's Executive Orders lasting 228 days (the Cuomo Period) effectuated a toll or a suspension? If a toll, then Plaintiff was within its rights to add Capital Concrete NY Inc. as a Plaintiff, since the statute of limitations expired on November 26, 2022, and Plaintiff's motion was filed on April 22, 2022, before then. If a suspension, Plaintiff's April 22, 2022 motion was too late as the three-year statute of limitations expired on April 12, 2022.
In March 2020, the world was met with a relatively novel challenge, a global pandemic stemming from COVID-19. On March 7, 2020, former Gov. Andrew M. Cuomo declared a state of emergency in New York State to combat the spread of the virus. Thirteen days later, Gov. Cuomo issued Emergency Executive Order Number 202.8. This order read, in relevant part:
I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the Criminal Procedure Law, the Family Court Act, the Civil Practice Law and Rules, the Court of Claims Act, the Surrogate's Court Procedure Act, and the Uniform Court Acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020 (Executive Order [A. Cuomo] No. 202.8 [9 NYCRR § 8.202.8] [emphasis added]).
"Governor Cuomo later issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020" (Brash v Richards, 195 A.D.3d 582, 583 [2d Dept 2021], citing Executive Orders [A. Cuomo] Nos. 202.8, 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67, and 202.72 [9 NYCRR §§ 8.202.8, 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, and 8.202.72]). Former Governor Cuomo's original Emergency Executive Order would be extended until November 3, 2020 (see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR § 8.202.67]).
As noted above, it was on September 24, 2021 that Capital Concrete NY Inc. was brought into this lawsuit, when Defendants and Second Third-Party Plaintiffs Happy Living Development LLC and West 37th Street LLC sued it as a Second Third-Party Defendant. Capital Concrete NY Inc. answered on January 31, 2022.
The instant motion which is the subject of this decision was subsequently filed by Plaintiff on April 22, 2022. Capital Concrete NY Inc. filed its opposition on August 8, 2022. The parties appeared before this Court and oral arguments were held on this motion on March 1, 2023.
The issue at hand is one of syntactical or linguistic interpretation of an order which had the effect of law. "Subject to the state constitution, the federal constitution and federal statutes and regulations, the governor may by executive order temporarily suspend specific provisions of any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster" (Executive Law § 29-a [1]). "Executive Law § 29-a(2)(d) [further] provides that any such order 'may provide for the alteration or modification of the requirements of such statute, local law, ordinance, order, rule or regulation suspended, and may include other terms and conditions'" (Brash, 195 A.D.3d at 583). The worldwide pandemic created the condition under which Gov. Cuomo possessed the ability to issue emergency Executive Orders subject only to controlling state and federal law. This rendered the issue, in effect, one of legislative interpretation.
The predominant problem is Former Governor Cuomo's inclusion of both the words, "suspend" and "toll" (see Executive Order [A. Cuomo] No. 202.8 [9 NYCRR § 8.202.8]; but see Executive Order [A. Cuomo] No. 202.67 [9 NYCRR § 8.202.67]). "A toll suspends the running of the applicable period of limitation for a finite time period, and '[t]he period of the toll is excluded from the calculation of the [relevant time period]'" (Brash, 195 A.D.3d at 582, citing Chavez v Occidental Chem. Corp., 35 N.Y.3d 492 [2020]). "Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension. Thus, if the executive orders discussed above worked a suspension rather than a toll, any time period affected by those orders expired on November 3, 2020" (Foy v State of NY, 71 Misc.3d 605, 608-609 [Ct Cl 2021]).
There is somewhat of a dispute among courts as to whether the Cuomo Period impacts a statute of limitations and, if so, how. Most courts, including the Second Department, have taken the position that the Cuomo Period tolled the statute of limitations (s ee Espinal v Port Auth. of NY & N.J., 213 A.D.3d 101 [3d Dept 2023] [one-year statute of limitations which would have ended on May 7, 2020, satisfied by commencement on November 4, 2020]; Brash, 195 A.D.3d 582 [30-day deadline running from October 2, 2020, satisfied by service and filing on November 10, 2020]; Matter of Roach v Cornell Univ., 207 A.D.3d 931 [3d Dept 2022] [four-month statute of limitations which accrued on April 20, 2020, during Cuomo Period, was stayed and commenced after November 3, 2020; four-months, not 228 days, to begin then, so March 11, 2021 filing was late]; Powell v United States, 2022 U.S. Dist LEXIS 93314 [SD NY May 24, 2022]).
In the oft-cited case of Brash, the Second Department looked to the plain language of Executive Order No. 202.8. In its holding, the Second Department found that said order explicitly noted that" 'any specific time limit... is hereby tolled from the date of this executive order until April 19, 2020'" (Brash, 195 A.D.3d at 583, quoting Executive Order [A. Cuomo] No. 202.8 [9 NYCRR § 8.202.8]). The Second Department continued, noting that the subsequent executive orders" 'continue[d] the suspensions, and modifications of law, and any directives, not superseded by a subsequent directive,' made in the prior executive orders... or contained nearly identical language to that effect" (Brash, 195 A.D.3d at 584, citing Executive Orders [A. Cuomo] Nos. 202.14, 202.28, 202.38, 202.48, 202.55, 202.55.1, 202.60, 202.67 and 202.72 [9 NYCRR §§ 8.202.14, 8.202.28, 8.202.38, 8.202.48, 8.202.55, 8.202.55.1, 8.202.60, 8.202.67, and 8.202.72]). Taking into account this language, the Second Department, and subsequently other courts, held that the Cuomo Period tolled the statute of limitations.
However, some courts have held that the Cuomo Period suspended the statute of limitations rather than tolled it. "[A toll] is not what was intended, nor is it what was provided for in the executive orders.... It is clear to the undersigned that the Governor imposed a suspension, not a toll." (Baker v 40 Wall St. Holdings Corp., 74 Misc.3d 381, 384 [Sup Ct, Kings County 2022].) In Baker, the Supreme Court held that Gov. Cuomo and the Appellate Division only intended the delay to apply to statutes of limitations which expired during the 228 days. In the case before the Supreme Court, the cause of action accrued on March 1, 2018 and the three-year statute of limitations was to expire on March 1, 2021. The complaint at issue was served on August 25, 2021. Since the three-year period ended after the Cuomo Period's last date of November 3, 2020, the Supreme Court held that the Cuomo Period did not assist the proponent of the complaint; the Cuomo Period merely suspended the statute of limitations and did not add on additional days to the March 1, 2021 deadline. This is similar to the situation in the case at bar before this Court.
The Baker decision was followed in Barry v Royal Air Maroc (2022 WL 3215050 [SD NY July 8, 2022]), where the court held that a statute of limitations not expiring until April 30, 2022 was not affected by Gov. Cuomo's Executive Orders.
In Cruz v Guaba (74 Misc.3d 1207 [A], 2022 NY Slip Op 50077[U] [Sup Ct, Queens County 2022]), the date of the alleged negligence was February 4, 2018. Filing of the summons and complaint took place on May 12, 2021. The defendants moved to dismiss for failing to timely commence pursuant to the three-year deadline provided for in CPLR 214(5). Plaintiff argued that the Executive Orders resulted in an extension of what would have been a strictly three-year statute of limitations period. "Contrary to Plaintiff's claims, the executive orders did not extend everyone's statute of limitations period for an additional 228 days. As such, the statute of limitations for Plaintiff to commence this action expired on February 4, 2021. Since Plaintiff commenced this action on May 12, 2021, it is barred by the three-year statute of limitations." (Id. at *2.)
Capital Concrete NY Inc. argued that the decisions treating the Cuomo Period as a suspension (not a toll) should be applied in the present context. If these holdings are applied here, Plaintiff's motion to amend is untimely as the statute of limitations would not be sufficiently extended to maintain timeliness. However, these decisions, unlike the decisions referenced previously, are not binding on this Court and-in fact-are unpersuasive.
Rather, this Court agrees with the interpretation of the Executive Orders by the Brash court, and deems the Cuomo Period to constitute a toll, thus extending any statute of limitations by 228 days where the Cuomo Period fell completely within what otherwise would have been a straight three-year period following accrual of the cause of action.
Gov. Cuomo's Executive Orders were paramount and necessary to the safety and recovery of New York State. These orders allowed citizens to remain safe with their families during an unprecedented pandemic and helped prevent the spread of the virus. During the duration of the initial phase of the pandemic, many state governmental and private functions were stayed or largely reduced for the safety of the people of New York. These necessary actions meant that many of the functions that are normally offered by the Courts or engaged in by private persons, including attorneys, were either reduced or paused entirely. Requiring parties and attorneys to have dealt with litigation matters during the Cuomo Period's 228 days-as Capital Concrete NY Inc. would have had Plaintiff do-contravenes the public policy which underpinned the purpose for the toll. Normally a victim of an accident who claims personal injuries resulting from negligence and seeks to commence suit has three years to do so. However, the ability to consult and work with an attorney was impaired for the 228 days of the Cuomo Period. Adding these 228 days to what otherwise would have been the expiration of the statute of limitations is more than appropriate under this unique once-in-a-century situation.
"[A]ccrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (Snyder v Town Insulation, Inc., 81 N.Y.2d 429, 432 [1993], citing Aetna Life and Cas. Co. v Nelson, 67 N.Y.2d 169 [1986]; Jacobus v Colgate, 217 NY 235 [1916]; Roldan v Allstate Ins. Co., 149 A.D.2d 20 [2d Dept 1989]). Here, the accident occurred on April 12, 2019. Deducting 228 days from the three-year post-accident period and adding them to April 12, 2022 yields a revised statute of limitations expiration date of November 26, 2022. Since the present motion to add Capital Concrete NY Inc. was filed on April 22, 2022, it was timely.
Furthermore, Capital Concrete NY Inc. will not be prejudiced by the extension of the statute of limitations. "Although the Statute of Limitations is generally viewed as a personal defense 'to afford protection to defendants against defending stale claims', it also expresses a societal interest or public policy 'of giving repose to human affairs'" (John J. Kassner & Co., Inc. v City of New York, 46 N.Y.2d 544, 550 [1979]). In other words, the statute of limitations is intended to provide solace to parties that at some point may have had potential viable claims against them but such claims were not commenced. That is not the case here. Capital Concrete NY Inc. was impleaded by Second Third-Party Plaintiffs Happy Living Development and West 37th St LLC on September 24, 2021, via a Summons and Verified Second Third-Party Complaint (NYSCEF Doc No. 99). On September 29, 2021, an Amended Summons and Amended Verified Second Third-Party Complaint were filed against Capital Concrete NY Inc. by said Second Third-Party Plaintiffs; again causes of action against Defendant Capital Concrete NY Inc. were asserted (NYSCEF Doc No. 110). Capital Concrete NY Inc. filed its Answer, which included a cross-claim and a counterclaim, on January 31, 2022 (NYSCEF Doc No. 123). This evidenced that Capital Concrete NY Inc. was being sued for actions relating to the April 12, 2019 accident. Being apprised of Plaintiff's claim against it in February 2022 did not undercut the policy against stale claims and that parties be afforded solace that actions it engaged in were no longer the subject of legal liability. Capital Concrete NY Inc. was already aware of potential exposure to liability. Granting Plaintiff leave to amend its Complaint to assert a direct claim against Capital Concrete NY Inc. does not prejudice the latter.
This conclusion is buttressed by the recent decision in McLaughlin v Snowlift, Inc. (214 A.D.3d 720 [2d Dept. 2023]). The facts in that case involved a cause of action for personal injuries accruing on January 4, 2018, which normally would have resulted in the statute of limitations expiring on January 4, 2021. The Cuomo Period of March 20, 2020 to November 3, 2020 fit right within that three-year period. Rather than the statute of limitations expiring on January 4, 2021, the Appellate Division held that the Cuomo Period was a toll, with the result that the commencement of the action on January 13, 2021 was timely. (See also Privilege Underwriters Reciprocal Exchange v Frank & Lindy Plumbing & Heating, Inc, 78 Misc.3d 1225[A], 2023 NY Slip Op 50351[U] [Sup Ct, Westchester County 2023]; Christian v Zhang, 75 Misc.3d 1204 [A], 2022 NY Slip Op 50351[U] [Sup Ct, Bronx County 2022]; Karamchand v Extell Development, 2021 NY Slip Op 32610[U] [Sup Ct, NY County 2021]; Vivar v BSREP UA River Crossing LLC, 2021 NY Slip Op 32153[U] [Sup Ct, NY County 2021].)
Conclusion
Movant Plaintiff cannot avail itself of the relation-back doctrine in order to assert its claim against Capital Concrete NY Inc. The relation-back doctrine fails because the present Defendants are not unified in interest with Capital Concrete NY Inc., and Plaintiff knew of the alleged exposure of Capital Concrete NY Inc. due to the April 12, 2019 accident prior to April 12, 2022.
Gov. Cuomo's Executive Orders tolled the statute of limitations which otherwise would have expired on April 12, 2022, and extended it to November 26, 2022. Therefore, Plaintiff's motion filed on April 22, 2022 was still timely. To the extent indicated below, Plaintiff's motion is granted.
Determination
IT IS HEREBY ORDERED:
(1) Plaintiff is granted leave to supplement his Summons and amend his Complaint to include one or more causes of action directly against Capital Concrete NY Inc., as reflected in his Second Supplemental Summons and Second Amended Verified Complaint, which shall be served upon all parties as required pursuant to the CPLR.
(2) The caption of this action is amended to read as follows:
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EDWARD VASQUEZ, Plaintiff, -against
TRI-STATE LUMBER LTD., TRI-STATE LUMBER INC., RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC, WEST 37th ST LLC, and CAPITAL CONCRETE NY INC., Defendants.
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TRI-STATE LUMBER LTD., Third-Party Plaintiff, -against
RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC, and WEST 37th ST LLC, Third-Party Defendants.
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HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Second Third-Party Plaintiffs, -against
CAPITAL CONCRETE NY INC., Second Third-Party Defendant.
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To the extent Plaintiff's motion sought any relief not granted above it is denied.