Opinion
Index No.: 900379-2016
03-20-2017
DANIEL T. LAPPIN, Plaintiff, v. BARBERA HOMES, INC., T.W. CONTRACTING, INC. and THOMAS WENDELL, JR., Defendants.
Appearances: Napierski, Vandenburgh, Napierski & O'Connor, LLP Attorneys for Plaintiff By: Eugene Daniel Napierski, Esq. 296 Washington Avenue Ext. Suite 3 Albany, New York 12203 Goldberg Segalla, LLP Attorneys for Defendants Barbera Homes, Inc. By: William Greagan, Esq. 8 Southwoods Boulevard, Suite 300 Albany, New York 12211 Flink Smith Law, LLC Attorneys for Defendants T.W. Contracting, Inc. and Thomas Wendell By: Jay Smith, Esq. 449 New Karner Road Albany, New York 12205
NYSCEF DOC. NO. 27 DECISION AND ORDER
RJI No.: 01-16-123116 (Supreme Court, Albany County, Article 78 Term) Appearances: Napierski, Vandenburgh, Napierski & O'Connor, LLP
Attorneys for Plaintiff
By: Eugene Daniel Napierski, Esq.
296 Washington Avenue Ext.
Suite 3
Albany, New York 12203 Goldberg Segalla, LLP
Attorneys for Defendants Barbera Homes, Inc.
By: William Greagan, Esq.
8 Southwoods Boulevard, Suite 300
Albany, New York 12211 Flink Smith Law, LLC
Attorneys for Defendants T.W. Contracting, Inc. and Thomas Wendell
By: Jay Smith, Esq.
449 New Karner Road
Albany, New York 12205 David A. Weinstein, J. :
The motions before me arise out of a suit brought by plaintiff Daniel Lappin against defendants Barbera Homes, Inc. ("Barbera Homes" or "BH"), T.W. Contracting, Inc. ("TW") and Thomas Wendell Jr., for injuries he alleges to have suffered on March 28, 2013 when an unsecured board fell on his head. The complaint sets forth claims under Labor Law §§ 200, 240(1) and 241(6) and for common law negligence. According to the complaint, on the date of the accident Lappin was employed by John D. Marcella & Sons Appliances, Inc., which was performing work for defendants at 12 Mulberry Drive in Colonie, New York, as part of a development known as Parkside at the Crossings.
The complaint avers that the location of the fall was owned by defendant Barbera Homes, which also served as a contractor for the work being performed there (Compl. ¶¶ 4-5). BH served an answer denying ownership, and its counsel represented to plaintiff's attorney that it was not a proper party to this action, as the work at issue was performed pursuant to a contract between defendant TW and a different corporation, Parkside at the Crossings, Inc. ("Parkside") (Pl. Aff. ¶ 10 & Ex. F).
By his present motion, plaintiff seeks to add Parkside as a defendant. There is no dispute that the three-year limitations period applicable to a personal injury action against Parkside has elapsed, and thus plaintiff seeks to avail itself of one of two avenues for making Parkside a defendant while avoiding the time bar. First, he asks that the Court allow him to amend the summons to include Parkside as a defendant pursuant to CPLR 2001, permits a court to overlook certain non-substantive errors, and CPLR 305(c), which provides for amendment to the caption in the absence of prejudice to the opposing party. Second, he moves to amend the complaint under CPLR 3025 to add Parkside as a defendant, and argues that such amendment should be deemed timely under the "relation back doctrine."
Plaintiff supports his application with the affidavit of counsel and various exhibits. These include printouts from the Department of State regarding Barbera Homes and Parkside, which indicate that they share the same address and the same chief executive officer - Frank Barbera (see Pl. Mot. Ex. D). In addition, plaintiff submits two contracts between Parkside and TW, both dated January 1, 2013, which were provided by BH's counsel: a standard form agreement governing such matters as indemnification and insurance, and a "Construction Agreement and General Conditions" (id. Ex. F). While the second agreement identifies Parkside as the "Owner/Builder," it provides that TW is to be paid by Barbera Homes, and that BH will be given any unused construction materials at the completion of the contract. On the final page the contract ceases to refer to Parkside as the party to the agreement altogether, and instead refers only to Barbera Homes, barring it from assigning the contract, granting BH the right to require TW to post a performance bond, and vesting BH with the authority to "reject any work that does not confirm to the applicable plans, specifications and manufacturers installation instructions, building codes or governmental regulations or has not been performed in a workmanlike manner" (id.). The signature line on the Construction Agreement does not indicate whether it has been signed on behalf of Parkside, Barbera Homes, or both.
Lappin argues, on the basis of the relationship between Barbera Homes and Parkside manifested in the contract, that the latter will suffer no prejudice from being added to the suit at this point.
Barbera Homes has submitted papers in opposition to the motion, and cross-moves for dismissal. It argues that the Court should "not consider this motion," since Parkside has never been served, has had no opportunity to be heard, and thus the Court lacks jurisdiction over it. Further, it contends that the failure to name Parkside as a defendant is not the sort of mistake that can be remedied under CPLR 2001 and 305(c). In regard to the application to amend, defendant contends that Parkside is not united in interest with Barbera Homes, and therefore the complaint against the former does not relate back to plaintiff's original pleading and is thus untimely. Finally, defendant asserts that plaintiff's motion papers make clear that "there is no connection between this incident and Barbera [Homes]" (Def. Aff. ¶ 32), and therefore the complaint must be dismissed. Defendant's papers do not address, however, the references in the contract to BH.
Since the other defendants do not join in this motion, for simplicity's sake I refer to Barbera Homes as "defendant" in this opinion.
In a reply submission, Lappin presents (1) a website page from houzz.com for Parkside at the Crossing, which identifies it as a BH project (Ex. G); and (2) an article in the Albany Times-Union from March 9, 2008, identifying the developer of Parkside at the Crossings project where the accident at issue took place as "Frank Barbera of Barbera Homes" (Ex. H).
Discussion
Plaintiff initially seeks relief under CPLR 2001 and 305(c). The former provides:
"At any stage of an action, including the filing of a summons with notice, summons and complaint or petition to commence an action, the court may permit a mistake, omission, defect or irregularity, including the failure to purchase or acquire an index number or other mistake in the filing process, to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."
CPLR 305(c) states:
"At any time, in its discretion and upon such terms as it deems just, the court may allow any summons or proof of service of a summons to be amended, if a substantial right of a
party against whom the summons issued is not prejudiced."
On the basis of these provisions, courts have permitted plaintiffs to amend the summons to fix a "misnomer," i.e. to correct the name of an existing defendant (Mongardi v BJs Wholesale Club, Inc., 45 AD3d 1149, 1151 [3d Dept 2007]; see also Unique Laundry Corp. v Hudson Park NY LLC, 55 AD3d 382, 382 [1st Dept 2008] [plaintiff allowed to correct caption to list proper name of defendant, as registered with the Department of State]; Smith v Hennesey, 266 AD2d 692, 692 n* [3d Dept 1999] [CPLR 2001 used to correct transposition of two words in party's name])). But these statutes "cannot be used by a party as a device to add or substitute a party defendant" (see Hart v Marriot International, Inc., 304 AD2d 1057, 1059 [3d Dept 2003]).
In light of these principles, an amendment to change the name of the defendant on the summons is only permitted when "(1) there is evidence that the correct defendant (misnamed in the original process) has in fact been properly served, and (2) the correct defendant would not be prejudiced by granting the amendment sought" (Achtziger v Fuji Copian Corp., 299 AD2d 946, 947 [4th Dept 2002], quoting Ober v Rye Town Hilton, 159 AD2d 16, 20 [2d Dept 1990]).
Plaintiff's application fails under the first prong of this test, since Lappin never served Parkside within the limitations period. Service upon Barbera Homes did not suffice for that purpose. Rather, by serving a summons and complaint naming BH upon the Secretary of State, plaintiff "did not thereby also obtain jurisdiction over [an] entirely separate corporate entity," notwithstanding that it has the same address, and same CEO (see Smith v Giufre Hyndai, Ltd., 60 AD3d 1040 [2d Dept 2009] [service on one corporation via Secretary of State does not constitute service on another, for purposes of CPLR 305, although both had same president, general manager and address]; see also Rinzler v Jafco Assocs., 21 AD3d 360, 362 [2d Dept 2005] [fact that corporations had same shareholders, officers and address did not make service on one count for service upon the other]; Pugliese v Paneorama Italian Bakery Corp., 243 AD2d 548 [2d Dept 1997] [denying application to add corporation as defendant on summons when other corporation with same shareholders, officers and location had been served via Seretary of State, but through different managing agent]).
Finally, amendment of the summons has been allowed where the defendant itself plays a role in misleading plaintiff as to the proper party to sue. For example, in Wishnick v Bollinger Indus. (259 AD2d 350 [1st Dept 1999]), the principals of defendants' corporation formed a new company with the same name as the tortfeasor, and then changed the name of the original corporation. In error, plaintiffs sued the new company. The First Department permitted plaintiffs to amend the caption to name the proper defendant after the expiration of the limitations period under CPLR 2001, because "plaintiffs' confusion regarding the name of the corporation . . . was occasioned by the principals of both corporations, who created a new corporation with the same name as the old one, and who at all relevant times also knew of plaintiffs' injury claim and of plaintiffs' misapprehension regarding the . . . name change, and, except for the running of the Statute of Limitations, otherwise fail to show how the [proper defendant] would be prejudiced by the amendment" (id.).
Here, plaintiff has presented no proof that the creation of two separate corporate entities was an effort to avoid the present suit, or that he was otherwise led to sue the wrong party by defendant's conduct. As a result, Lappin has failed to show a basis for relief under CPLR 305(c) and 2001.
Lappin seeks to achieve the same result by amending his complaint to name Parkside as a new defendant. Generally, leave to amend a pleading is "freely given absent prejudice or surprise resulting directly from the delay" (Colucci v Canastra, 130 AD3d 1268, 1270 [3d Dept 2015] [internal quotation and citation omitted]). In this case, though, the claims against Parkside are untimely. As a result, Lappin may amend only if the pleading "relates back" to the original summons and complaint.
The "relation back" doctrine is codified in CPLR 203(f), which states: "A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading." An amendment against a new defendant relates back to the date of the original pleading only when plaintiff can show that "(1) [the claims] . . . arose out of the same occurrence, (2) the named . . . defendants and the proposed defendant are united in interest and (3) the proposed defendant knew or should have known that, but for the mistaken identity, the action would have been brought against it as well" (Stokes v Komatsu Am. Corp., 117 AD3d 1152, 1155 [3d Dept 2014]).
The moving defendant concedes that plaintiff has met the first prong of this test (see Def. Aff. ¶ 21). While the parties do not address the third prong, it appears that given the common management and location of Barbera Homes and Parkside, and the fact that both were involved with the project at issue, plaintiff can show that it has been established as well (see Zehnick v Meadowbrook II Assoc., 20 AD3d 793, 796 [3d Dept 2005], appeal dismissed 5 NY3d 873 [2005] [where defendant and party to be added "share management staff and the same insurance carrier," the new party "surely knew or should have known that, but for a mistake by plaintiff, the action would have been brought against [it] as well"]).
The question of relation back, then, turns on whether the Parkside and Barbera Homes are "united in interest" for purposes of this action.
Plaintiff relies on the interlocking relationships between Barbera Homes and Parkside, as well as the fact that both have a contractual role to play in the project at issue, to show that they are united in interest. Sharing of management, however, is not sufficient to meet the unity of interest test; rather the parties must "share precisely the same jural relationship in the action at hand" and unless each party is "vicariously liable for the acts of the other ... there is no unity of interest between them" (id. at 796-797; see also Stokes, 117 A3d at 1155 [there is unity of interest where "the judgment will similarly affect the proposed defendant, and . . . the new and original defendants are vicariously liable for the acts of the other"] [citations and internal quotation marks omitted]; Matter of Ayuda Funding, LLC v Town of Liberty, 121 AD3d 1474, 1475 [3d Dept 2014] [unity of interest prong met if defendant sought to be added and already named defendant will "stand or fall together and that. . . judgment against one will similarly affect the other"]).
Plaintiff does not adduce evidence sufficient to meet this standard. Indeed, several cases have addressed this issue under circumstances fairly analogous to those before me. Each has declined to find the requisite unity of interest.
In Zehnick, supra, the plaintiff brought suit for a slip and fall on snow at a property complex. It turned out that the location of the fall was under ownership of a different corporation from the one named as defendant, albeit one that had the same "general partner, property superintendent, insurer and - by single contract - contractor for snow removal" (20 AD3d at 794). The properties shared "roadways, water, sewage and a management office, creating the appearance of a single housing complex" (id.). Nevertheless, "despite the shared resources of defendant and [the corporation sought to be added] and the intermingled physical infrastructure," they did not have identical interests in this litigation, and therefore the relation back doctrine did not apply (id. at 797).
Similarly in Stokes, supra, the Third Department found that plaintiff had failed to show unity of interest notwithstanding that the party which plaintiff sought to add, and the named defendants, were "related subsidiaries of the same holding company or parent corporation" (117 AD3d at 1155). The Court noted nonetheless that they are still "separate and distinct entities," and plaintiff had "failed to come forward with evidence that there is any type of interrelationship between them that would give rise to vicarious liability" (id.).
Finally, in Desiderio v Rubin (234 AD2d 581 [2d Dept 1996]), the plaintiff sought to add as defendant a corporation (Silver Star Leasing) with the same owners as the already named defendant (Silver Star Motors). Despite the common ownership, the Court found that these entities had different defenses - one sought dismissal because it did not own the car at issue, the other was the owner. As a result, the Court found that they were not united in interest, and the claims against the defendant sought to be added did not relate back to the original complaint.
In sum, the clear teaching of the caselaw is that "although the corporations sought to be added by plaintiff in its amended complaint may be controlled by the same principal and operate as a single unit" with the existing defendant, if the corporations are separate and distinct business entities which "have no jural relationship other than that of alleged joint tort-feasors" they do not share a unity of interest for purposes of the relation back doctrine (Capital Dimensions, Inc. v Samuel Oberman Co., 104 AD2d 432, 433 [2d Dept 1984]).
Given the above, plaintiff cannot show a unity of interest here. The very contract upon which plaintiff relies shows that BH and Parkside are allocated different roles vis-a-vis the project at issue, and only Parkside is identified as the owner of the property where the injury took place. Plaintiff has not presented any basis on which Parkside would be vicariously liable for the claims made against Barbera Homes. As a result, the relation back doctrine has no application in this case (see Royce v DIG EH Hotels, LLC, 139 AD3d 567 [1st Dept 2016] [no relation back where new defendant has different defenses under claims for negligence and under Labor Law § 200]).
I therefore find that the proposed amendment is untimely, and the application to serve an amended complaint must be denied. I turn, then, to defendant's cross-motion to dismiss.
The gravamen of this motion is that admissions made by in plaintiff in its papers make clear that it cannot prove "that [Barbera Homes] is an owner or contractor relation to the property in question, or that defendant exercised supervisory control," and thus BH cannot be held liable under Labor Law §§ 241(6), 240(1) or 200 (Def. Aff. ¶ 29). Defendant argues that Parkside, and not Barbera Homes, contracted and was responsible for the work plaintiff was performing when he was injured (see id. ¶ 30). Plaintiff, for his part, argues that the motion is premature under CPLR 3211, since all of his allegations must be taken as true and all inferences drawn in his favor (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).
Plaintiff's pleadings allege, inter alia, that BH was "a contractor for the work performed" (Pl. Mot. Ex. B ¶ 5), had constructive and actual notice of the dangerous condition that injured Lappin and failed to remedy it (id. ¶¶ 19-21), and did not provide the requisite safety devices (id. ¶ 31). Those allegations, taken by themselves, are sufficient to survive a CPLR 3211 motion given the causes of action pled by plaintiff.
Defendant argues that these claims are at odds with the contracts submitted by both parties on the present motion. A complaint can only be dismissed on the basis of evidence outside the complaint, however, when such evidence conclusively establishes that plaintiff has no cause of action- i.e., when plaintiff's cause of action is "flatly rejected" by the evidentiary record (see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 135 [1st Dept 2014]; see also Liberty Affordable Hous., Inc. v Maple Ct. Apts., 125 AD3d 85 [4th Dept 2015] [evidentiary submissions must "establish conclusively" that plaintiff has no cause of action to warrant dismissal under CPLR 3211[a][7] [citation omitted]).
That is not the case here. The contracts do not flatly rebut the allegations in the complaint regarding Barbera Homes' role in the project. Instead, they present a confused and uncertain picture of the responsibilities of BH and Parkside. In the two contracts, one refers to Parkside as "Contractor," the other as "Owner/Builder." The Construction Agreement imposes numerous requirements on BH, making it responsible to pay the contractor and to ensure compliance with legal requirements. How BH carried out these roles in practice, and the manner in which the two companies allocated their tasks on the project receives no further clarification in defendant's submissions. Indeed, defendant does not address the fact that Barbera Homes is a party to the Construction Agreement at all. Under these circumstances, what role, if any, Barbera Homes played in the construction project that gave rise to plaintiff's injury cannot be settled on this record.
Defendant also argues that the only basis for BH's liability is its ownership of the property, and "[p]laintiff now concedes that this corporation was not the owner of the property, and alleges no other connections to the plaintiff's affidavit" (Def. Aff. ¶ 31). This contention is incorrect. The affidavit of plaintiff's counsel on which defendant relies does not concede Parkside's ownership, but says only that "it appears that Parkside at the Crossings may have been the owner of the property" (Pl. Aff. ¶ 27). Further, as noted above, the allegations against BH are not limited to its ownership role, but include allegations that it did not properly maintain a safe workplace (see supra p. 9). Again, the record is insufficient to warrant dismissal of these claims against Barbera Homes at this stage. Defendant's cross-motion must therefore be denied.
To sum up: Plaintiff's motion to amend the summons under CPLR 2001 and 305(c), or in the alternative to amend his complaint, is denied, as is defendant's cross-motion to dismiss.
The parties shall appear for a conference before the Court on April 10, 2017 at 10:00 am at 150 State Street, Albany, NY to set a discovery schedule and address such other matters as may be appropriate.
This constitutes the Decision & Order of the Court. This Decision & Order is being transmitted to the plaintiff for filing and service. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.
ENTER.
/s/_________
David A. Weinstein
Acting Supreme Court Justice Dated: Albany, New York
March 20, 2017 Papers Considered: 1. Plaintiff's Notice of Motion, dated December 9, 2016, Affidavit in Support, with Exhibits A through F annexed thereto;
2. Defendant Barbera Homes' Notice of Cross-Motion, dated January 10, 2017, Affirmation in Support, with Exhibits A through B annexed thereto;
3. Plaintiff's Reply Affirmation, dated February 1, 2017, with Exhibits G through H annexed thereto; and
4. Plaintiff's Reply Memorandum of Law, dated February 1, 2017.