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Motz v. Cuevas

Appellate Division of the Supreme Court of New York, Second Department
Feb 9, 1987
127 A.D.2d 637 (N.Y. App. Div. 1987)

Opinion

February 9, 1987

Appeal from the Supreme Court, Queens County (Lerner, J.).


Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion is denied.

Under the circumstances of this case, Special Term erred in granting the plaintiff's motion for leave to serve an amended complaint seeking to allege a new cause of action against the defendant American Beverage Corp. (hereinafter American Beverage) sounding in negligent employment and hiring of the defendant Rafael E. Cuevas, who is accused of shooting the plaintiff's deceased. This new cause of action is concededly time barred under the applicable three-year Statute of Limitations. Moreover, we find that the plaintiff's original pleadings did not give American Beverage adequate notice of this new cause of action and thus it cannot be deemed to "relate back" to the date of the original complaint under the provisions of CPLR 203 (e) (see, Menis v. Raksin, 125 A.D.2d 375). Additionally, it is significant to note that American Beverage would experience undue prejudice if the amendment were permitted in view of the fact that the corporation was sold in February 1982, has been a defunct corporation since that time, and the current whereabouts of the corporation's former principal officers are unknown. Finally, the plaintiff's motion papers herein were deficient in view of the absence of an affidavit setting forth the reasons for his delay in seeking the proposed amendment.

In view of the above, the plaintiff's motion should be denied. Mollen, P.J., Thompson, Brown and Niehoff, JJ., concur.


Summaries of

Motz v. Cuevas

Appellate Division of the Supreme Court of New York, Second Department
Feb 9, 1987
127 A.D.2d 637 (N.Y. App. Div. 1987)
Case details for

Motz v. Cuevas

Case Details

Full title:HENRY MOTZ, Respondent, v. RAFAEL E. CUEVAS et al., Defendants, and…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Feb 9, 1987

Citations

127 A.D.2d 637 (N.Y. App. Div. 1987)

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