Opinion
Index No. 516832/2021
05-08-2024
VALENCIA MCKIE, Plaintiff, v. RDER BOB'S DISCOUNT FURNITURE, LLC., Defendant.
Unpublished Opinion
PRESENT: HON. WAVNY TOUSSAINT JUSTICE
DECISION
HON. WAVNY TOUSSAINT JUSTICE
The following papers numbered 1 to read herein ...............Papers Numbered
Notice of Motion/Order to Show Cause/ ...................
and Affidavits (Affirmations) Annexed ..................53-58
Cross Motion and Affidavits (Affirmation) Annexed ____
Answers/Opposing Affidavits (Affirmations) 53-5
Reply Affidavits (Affirmations) 60
Affidavit (Affirmation) ____
Other Papers____
Upon the foregoing papers, plaintiff moves (Seq. 04), for an order, pursuant to CPLR §3025, granting leave to amend the complaint. Defendant Bob's Discount Furniture, LLC (defendant) opposes, contending plaintiffs proposed amendments are time barred. Plaintiff s motion is denied.
Background
On or about April 12, 2018, plaintiff purchased a bed from defendant described as a Powerbob Queen Adjustable Base (the "bed"). Plaintiff alleges that on September 16, 2019, the motor in the bed caught fire, setting plaintiffs apartment ablaze. The submitted Fire Department of New York (FDNY) Incident Report states the fire occurred at 5:18pm. The responding FDNY units arrived at the apartment by 5:25pm (id.). Thereafter, the fire was extinguished by 6:57pm and the apartment deemed "cleared" (id.) A follow-up investigation conducted by the FDNY Bureau of Fire Investigation on September 17, 2019, was inconclusive as it was concluded that the "[e]examination [was] precluded due to clean up" (id. at p. 1). Plaintiff alleges that during the interim between 6:57pm of September 16, 2019 and 1:50pm of September 17, 2019, the landlord/owner of the apartment, Impacct Housing Development Fund Corporation ("Impacct"), prevented plaintiff from accessing the apartment, and immediately commenced cleanup and remediation of the fire damage, including the disposal of the bed and all of plaintiffs personal effects. Plaintiff alleges the fire left her homeless.
See Page 2 of the Incident Report annexed at Exhibit "A" to the complaint (NYSCEF Doc. No. 2).
Plaintiff commenced a timely action against defendant by Summons and Complaint filed July 8, 2021 (NYSCEF Doc. Nos. 1 and 2), asserting causes of actions sounding in strict liability, product liability and negligence. Issue was joined when defendant interposed an answer on August 23, 2021 (NYSCEF Doc. No. 5). Plaintiff now seeks to amend the complaint to add Impacct as a defendant and to assert a "FOURTH" cause of action for eviction (i.e., wrongful eviction) and a "FIFTH" cause of action for spoliation of evidence (NYSCEF Doc. No. 55). Defendant contends the motion must be denied, as the "statute of limitations on the causes of action in the proposed amended complaint expired on August 18, 2021", based on a three-year statute of limitations (NYSCEF Doc. No. 59, at par. 7). Plaintiff argues that since the proposed causes of action arise from Impacct's breach of the lease, a six-year statute of limitations applies, which "would not expire until August 18, 2024" (NYSCEF Doc. No. 60, at par. 13). Plaintiff thus asserts the proposed claims are timely.
A three-year statute of limitation applies to these claims (CPLR§214).
Discussion
The "Wrongful Eviction" Claim
As a preliminary matter, defendant incorrectly asserts that a three-year statute of limitation applies to bar plaintiffs proposed amended claims. Instead, the wrongful eviction claim is governed by a one-year statute of limitations applicable to intentional torts (CPLR §215(7]; Stewart v GDC Tower at Greystone, 138 A.D.3d 729, 730 [2d Dep't 2016]; PK Rest., LLC v Lifshutz, 138 A.D.3d 434, 437 [1st Dep't 2016]). Such claims begin to run at such time that it is reasonably certain that the tenant has been unequivocally removed with at least the implicit denial of any right to return (Tree v Cazares, 185 A.D.3d 866, 867 [2d Dep't 2020]; Gold v Schuster, 264 A.D.2d 547, 549 [1st Dep't 1999]).
As a general principal, the statute of limitations begins to run when a cause of action accrues (CPLR §203[a]); City Store Gates Mfg. Corp, v Empire Rolling Steel Gates Corp., 113 A.D.3d 718, 719 [2d Dep't 2014]). *'[A]ccrual occurs when the claim becomes enforceable, i.e., when all elements of the tort can be truthfully alleged in a complaint" (id., citation omitted).
Here, it is undisputed plaintiff was unequivocally removed from the apartment and denied any right to return as of September 17, 2019. Thus, under the applicable one-year statute of limitations, plaintiffs proposed wrongful eviction claim expired long ago and is now time barred.
In light of the foregoing, the question becomes whether Impacct, nonetheless, may be added as a defendant and the wrongful eviction claim permitted, based on the relation back doctrine (CPLR §203 [c]; Matter of Germain v Town of Chester Planning Bd., 178 A.D.3d 926, 927 [2d Dep't 2019]). The spoliation of evidence claim is separately discussed below.
Relation-Back Doctrine
As codified in CPLR §203 [c], the relation-back doctrine "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are 'united in interest"' (Sally v Keyspan Energy Corp., 106 A.D.3d 894, 896 [2d Dep't 2013]; Buran v Coupal, 87 N.Y.2d 173, 177 [1995]). The doctrine enables a plaintiff to correct a pleading error -- by adding either a new claim or a new party - after the statutory limitations period has expired. The doctrine thus gives courts the "room for the exercise of a sound judicial discretion" to determine whether "there is any operative prejudice precluding a retroactive amendment" (Duffy v Horton Mem. Hosp., 66 N.Y.2d 473, 477 [1985]).
To establish the applicability of this doctrine, a plaintiff must demonstrate that: (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with the original defendant; 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 that defendant as well (Buran, 87 N.Y.2d at 178; Weckbecker v Skanska USA Civ. Northeast, Inc., 173 A.D.3d 936,937 [2d Dep't 2019]). "The 'linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (Alvarado v Beth Israel Med. Ctr., 60 A.D.3d 981, 982 [2009]; Buran, 87 N.Y.2d at 180).
Here, although the claims arose out of the same occurrence, plaintiff failed to establish Impacct was united in interest with defendant. "In a negligence action, 'the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other' "(Moceri v Town of Islip, 225 A.D.3d 856, 858 [2d Dep't 2024p. Plaintiff failed to establish that Impacct had a relationship with defendant which would make Impacct vicariously liable for defendant's negligence (Sally, 106 A.D.3d at 896-897). Nor has plaintiff offered any proof to establish that Impacct should have known that the action would have been commenced against it as well, but for plaintiffs mistake as to the identity of the proper parties (Avila v Distinctive Dev. Co., LLC, 120 A.D.3d 449, 450 [2d Dep't 2014]). Additionally, the Court finds there is no basis to toll or otherwise excuse the applicable one-year statute of limitations (Stewart, 138 A.D.3d at 730). The proposed wrongful eviction claim is therefore denied.
The "Spoliation of Evidence" Claim
As a basis for the proposed spoliation of evidence claim, plaintiff alleges, among other things, that Impacct should have been aware the FDNY would investigate the cause of the fire and that it should have known that the "bed and the motor unit . . . would be evidence of any claims [plaintiff] might have against [defendant]" (NYSCEF Doc. No. 55, at pars. 42 and 45). Other than plaintiffs bare assertions to this point, no other evidence is submitted by plaintiff to establish that
Impacct had any knowledge of the allegedly defective motor or that same would form the basis of plaintiff s claims against defendant. In any event, New York does not recognize a cause of action for spoliation of evidence as an independent tort (Lalima v Consolidation Ediso Company of New York, Inc., 151 A.D.3d 832, 834 [2d Dep't 2017]; Montagnino v. Inamed Corp., 120 A.D.3d 1317, 1318 [2d Dep't 2014]. Accordingly, the proposed spoliation of evidence claim also is denied.
The Court notes the proposed amended complaint purported to correct the actual date of the fire as 9/16/19, as opposed to the incorrect date originally stated as 9/19/19, in conformity with the evidence (CPLR §3025[c]; DiSario v Rynston, 138 A.D.3d 672, 674 [2d Dep't 2016]). The Court will permit this limited correction to the complaint, and all subsequently filed papers shall reflect the actual date of the fire as 9/16/19. No substantial right of defendant will be affected by this correction (CPLR §2001; U.S. Bank N.A. v Eaddy, 109 A.D.3d 908, 910 [2d Dep't 2013]).
Conclusion
Accordingly, it is hereby
ORDERED that plaintiffs motion (Seq. 04) for an order, pursuant to CPLR §3025, granting leave to amend the complaint, is denied; and it is further
ORDERED that the complaint, and all subsequently filed papers, is corrected to reflect the actual date of the subject fire as 9/16/19.
This constitutes the decision and Order of the Court.