The motion court correctly found that plaintiffs raised questions of fact as to whether Robert A. Dvorak had constructive notice of lead-based paint in the Babylon premises, since they presented evidence that he entered the premises, made repairs, knew that the building was constructed before the banning of lead-based interior paint, was aware that paint was peeling on the premises, knew of the hazards of lead-based paint to young children, and knew that a young child lived in the house ( see Chapman v. Silber, 97 N.Y.2d 9, 15, 734 N.Y.S.2d 541, 760 N.E.2d 329 [2001] ). The motion court should not have granted summary judgment to Diane L. Dvorak, since, as a tenant by the entirety with her husband Robert, she may be held vicariously liable for his actions toward the property ( see Buran v. Coupal, 87 N.Y.2d 173, 179 n. 2, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995],affd.213 A.D.2d 863, 623 N.Y.S.2d 666 [3d Dept.1995] ). The motion court properly granted the Bronx defendants' motion for summary judgment.
Although leave to amend pleadings should be "freely given" within the court's discretion (CPLR 3025 [b]) and an exercise of this discretion is not to be lightly set aside (see, Falvo v. Leonelli, 274 A.D.2d 896, 897; Branch v. Green, 265 A.D.2d 646, 647; Scott v. KeyCorp, 247 A.D.2d 722, 726), Supreme Court erred in permitting plaintiff to amend its 1993 complaint to add a claim against Peccolo. While plaintiff correctly argues that the Statute of Limitations will not bar a proposed cause of action considered to "relate back" to the initial pleading (see, CPLR 203 [f]; Buran v. Coupal, 213 A.D.2d 863, 865-866, affd 87 N.Y.2d 173), a demonstration that significant prejudice will result from the moving party's unexcused delay in seeking to add the proposed claim will warrant denial of the motion to amend (see, Falvo v. Leonelli, supra, at 897; Thibeault v. Palma, 266 A.D.2d 616, 617; cf.,Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959). Here, plaintiff's six-year delay after filing the original complaint required a denial of its motion to add its proposed claim for conversion because it is effectively undisputed that Erickson is now missing and the alleged contracting parties, ABA and Newgate, no longer exist (see,Edenwald Contr. Co. v. City of New York, supra, at 959).
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of the cross motion of plaintiff to serve an amended summons and complaint adding Isuzu Motors, Ltd. (Isuzu Ltd.), as a defendant. Where, as here, the Statute of Limitations has expired, "CPLR 203 (b) sets forth a 'relation back' rule which essentially provides that where there are several defendants and they are 'united in interest', commencing an action against one within the applicable statutory period will preserve the action against the others" ( Buran v. Coupal, 213 A.D.2d 863, 865, affd 87 N.Y.2d 173, citing Siegel, N Y Prac ยง 45, at 55 [2d ed]). Isuzu Ltd., however, is not "united in interest" with defendant Isuzu Motors America, Inc., sued herein as Isuzu Motor America Inc. (Isuzu America) (CPLR 203 [b]).
In this case the wrong entity was named and purportedly served, and while the CPLR is to be liberally construed to rectify defects or omissions, the "'acquisition of personal jurisdiction is a prerequisite to the exercise of a court's discretionary power to correct an irregularity or permit prosecution of a matter brought in an improper form'" ( Matter of Vetrone v. Mackin, 216 A.D.2d 839, 841, quoting Matter of Common Council v. Town Bd., 144 A.D.2d 90, 92). We note that in cases involving the "relation back" doctrine it is required that the intended defendant have notice of the claim within the applicable Statute of Limitations period, and it must be shown that proper service was made within the limitations period before the amendment is allowed ( see, Buran v. Coupal, 213 A.D.2d 863, 866, affd 87 N.Y.2d 173; Benware v. Schoenborn, 198 A.D.2d 710, 711-712; Potamianos v Convenient Food Mart, 197 A.D.2d 734, 735). In Schiavone v Fortune ( 477 U.S. 21), a libel action improperly naming Fortune magazine as the defendant was commenced shortly before the Statute of Limitations ran, and the complaints were later amended to name Time magazine as the proper defendant after the limitation period had run.
Supreme Court properly denied that part of the cross motion of plaintiff to serve an amended summons and complaint adding Isuzu Motors, Ltd. (Isuzu Ltd.), as a defendant. Where, as here, the Statute of Limitations has expired, "CPLR 203 (b) sets forth a 'relation back' rule which essentially provides that where there are several defendants and they are 'united in interest', commencing an action against one within the applicable statutory period will preserve the action against the others" (Buran v Coupal, 213 A.D.2d 863, 865, affd 87 N.Y.2d 173, citing Siegel, NY Prac ยง 45, at 55 [2d ed]). Isuzu Ltd., however, is not "united in interest" with defendant Isuzu Motors America, Inc., sued herein as Isuzu Motor America Inc. (Isuzu America) (CPLR 203 [b]).
In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the new defendant as well. (see Buran v Coupal, 213 A.D.2d 863, 865, quoting Brock v Bua, supra [3d Dept 1995]), affd 87 N.Y.2d 173 [1995]).