Opinion
2017–04371 2017–13054 Index No. 514322/15
02-26-2020
Robert CARLINO, et al., Appellants, v. Joan SHAPIRO, et al., Defendants, 1515 Bedford Avenue Realty, LLC, Respondent.
Law Office of Peter A. Hurwitz, PLLC, New City, NY, for appellants. Cerussi & Spring, P.C., White Plains, N.Y. (Kevin P. Westerman and Mary Rich of counsel), for respondent.
Law Office of Peter A. Hurwitz, PLLC, New City, NY, for appellants.
Cerussi & Spring, P.C., White Plains, N.Y. (Kevin P. Westerman and Mary Rich of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated March 24, 2017, and (2) an order of the same court dated October 20, 2017. The order dated March 24, 2017, granted the motion of the defendant 1515 Bedford Avenue Realty, LLC, pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it. The order dated October 20, 2017, insofar as appealed from, upon reargument, adhered to the original determination in the order dated March 24, 2017, and denied that branch of the plaintiffs' motion which was for leave to amend the amended complaint.
ORDERED that the appeal from the order dated March 24, 2017, is dismissed, as that order was superseded by the order dated October 20, 2017, made upon reargument; and it is further,
ORDERED that the order dated October 20, 2017, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant 1515 Bedford Avenue Realty, LLC.
The plaintiffs commenced this action seeking damages for injuries allegedly sustained by the injured plaintiff when a vehicle he was operating was struck by a dump truck exiting a construction site at 1515 Bedford Avenue in Brooklyn. The plaintiffs thereafter filed an amended complaint asserting causes of action alleging negligence against the owner of the construction site, the defendant 1515 Bedford Avenue Realty, LLC (hereinafter Bedford Avenue), and others. Bedford Avenue then moved pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against it for failure to state a cause of action, and the Supreme Court, in an order dated March 24, 2017, granted the motion. Thereafter, the plaintiffs moved for leave to reargue their opposition to Bedford Avenue's motion and for leave to amend the amended complaint to assert a cause of action alleging public nuisance against Bedford Avenue. In an order dated October 20, 2017, the court granted reargument, and, upon reargument, adhered to its original determination and denied that branch of the plaintiffs' motion which was for leave to amend the amended complaint.
"Permission to amend a pleading should be ‘freely given’ where the proposed amendment is neither palpably insufficient nor patently devoid of merit, and there is no evidence that the amendment would prejudice or surprise the opposing party" ( Krakovski v. Stavros Assoc., LLC, 173 A.D.3d 1146, 1147, 103 N.Y.S.3d 553, quoting CPLR 3025[b] [citations omitted]; see Davis v. South Nassau Communities Hosp., 26 N.Y.3d 563, 580, 46 N.E.3d 614 ; Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959, 471 N.Y.S.2d 55, 459 N.E.2d 164 ). "A motion to amend a complaint or other pleading to add a cause of action or theory of recovery that is time-barred under the applicable statute of limitations is ‘patently devoid of merit’ " ( Schwartz v. Walter, 171 A.D.3d 969, 970, 95 N.Y.S.3d 879, quoting Wander v. St. John's Univ., 163 A.D.3d 896, 897, 82 N.Y.S.3d 47 ; see Roco G.C. Corp. v. Bridge View Tower, LLC, 166 A.D.3d 1031, 1033, 89 N.Y.S.3d 201 ). However, under the relation-back doctrine, a plaintiff may "interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint" ( Moezinia v. Ashkenazi, 136 A.D.3d 990, 992, 25 N.Y.S.3d 632 ; see CPLR 203[f] ; Caffaro v. Trayna, 35 N.Y.2d 245, 250, 360 N.Y.S.2d 847, 319 N.E.2d 174 ; Cady v. Springbrook NY, Inc., 145 A.D.3d 846, 846, 44 N.Y.S.3d 107 ; Pendleton v. City of New York, 44 A.D.3d 733, 736, 843 N.Y.S.2d 648 ). "A new legal theory of recovery may be asserted, so long as it arises from the same transactions alleged in the original complaint," but the doctrine is unavailable "where the original allegations did not provide the defendants notice of the need to defend against the allegations of the amended complaint" ( Pendleton v. City of New York, 44 A.D.3d at 736, 843 N.Y.S.2d 648 ; see Cady v. Springbrook NY, Inc., 145 A.D.3d at 847, 44 N.Y.S.3d 107 ).
Here, the allegations of the amended complaint failed to give notice of transactions or occurrences to be proven and the need to defend against the allegations of the proposed second amended complaint, filed more than one year after the statute of limitations had expired. The amended complaint, which asserted a cause of action alleging negligence against Bedford Avenue, did not contain allegations that put Bedford Avenue on notice of a potential public nuisance cause of action. The amended complaint did not allege that Bedford Avenue, through the operation of the dump truck, offended public morals, interfered with the use by the public of a public place, or endangered or injured the property, health, safety, or comfort of a considerable number of persons, or that the injured plaintiff suffered special injury beyond that suffered by the community at large (see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 292, 727 N.Y.S.2d 49, 750 N.E.2d 1097 ; Copart Indus. v. Consolidated Edison Co of N.Y., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 362 N.E.2d 968 ). The relation-back doctrine, therefore, does not apply and the cause of action alleging public nuisance is time-barred (see Cady v. Springbrook NY, Inc., 145 A.D.3d at 847, 44 N.Y.S.3d 107 ; Moezinia v. Ashkenazi, 136 A.D.3d at 992, 25 N.Y.S.3d 632 ; Calamari v. Panos, 131 A.D.3d 1088, 1089–1090, 16 N.Y.S.3d 824 ). Accordingly, we agree with the Supreme Court's determination denying that branch of the plaintiffs' motion which was for leave to amend the amended complaint.
Since the plaintiffs, on appeal, do not contest Bedford Avenue's argument that it owed no duty of care to the injured plaintiff that would support the negligence cause of action asserted against it in the amended complaint, there is no basis for disturbing the Supreme Court's determination, upon reargument, to adhere to its prior determination granting Bedford Avenue's motion to dismiss the amended complaint insofar as asserted against it for failure to state a cause of action (see MVB Collision, Inc. v. Allstate Ins. Co., 129 A.D.3d 1041, 1042, 13 N.Y.S.3d 137 ; Malone v. County of Suffolk, 128 A.D.3d 651, 653, 8 N.Y.S.3d 408 ; see also Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636–637, 781 N.Y.S.2d 249, 814 N.E.2d 419 ).
CHAMBERS, J.P., AUSTIN, MILLER and CHRISTOPHER, JJ., concur.