Opinion
Index No. 65172/2022 Motion Seq. Nos. 1 2
02-10-2023
JOHN RANDOLPH, Plaintiff, v. THE BRAZEN FOX, DECLAN RAINSFORD, RORY DOLAN, THE BRAZEN FOX, LLC, and DR & RD INC., Defendants.
Unpublished Opinion
To commence the 30-day statutory time for appeals as of right (CPLR 5513[a]), you are advised . to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
ZUCKERMAN, J.
The papers filed in NYSCEF as documents numbered 3 through 44 were read in connection with Defendants' two motions. In Motion Sequence Number 1, Defendants The Brazen Fox, Declan Rainsford, Rory Dolan and The Brazen Fox, LLC (collectively "the original Defendants") move, pursuant to CPLR 3211(a) (1), (5) and (7) for an Order dismissing Plaintiff John Randolph's Verified Complaint on the grounds of a defense founded upon documentary evidence, the cause of action may not be maintained because of the statute of limitations and that the pleading fails to state a cause of action or, in the alternative, pursuant to CPLR 3212, for an Order granting summary judgment.
In Motion Sequence Number 2, Defendants The Brazen Fox, Declan Rainsford, Rory Dolan, The Brazen Fox, LLC and DR &RD, Inc. (collectively "Defendants") move for the same relief with respect to Plaintiff's Amended Complaint. Plaintiff opposes both motions. Motion Sequence Numbers 1 and 2 are consolidated for disposition.
FACTS AND PROCEDURAL HISTORY
On September 21, 2022, Plaintiff commenced this personal injury action against the original Defendants by filing a Summons and Complaint ("the original Complaint"). The original Complaint contains a single cause of action for negligence. In essence, Plaintiff sought money damages after allegedly being injured, on April 14, 2018, at Defendants' restaurant ("the accident").
On November 1, 2022, the original Defendants moved, preanswer, to dismiss the original Complaint or, in the alternative, for summary judgment. On November 15, 2022, while that pre-Answer motion was pending, Plaintiff filed an Amended Summons and Amended Complaint which, as in the original, contained a single cause of action for negligence. In the Amended Complaint, however, Plaintiff added "DR &RD, Inc." as a corporate party Defendant and changed the date of the accident from April 14, 2018 to October 11, 2019.
On December 1, 2022, Defendants filed a second pre-Answer motion for dismissal/summary judgment with respect to the Amended Complaint. On December 21, 2022, Plaintiff filed two Affirmations in Opposition, one in response to each of the two motions. The arguments made in support of and against the first motion are essentially the same as those for and against the second. On January 5, 2023, Plaintiff filed a Reply Affirmation.
Notwithstanding Plaintiff filing an Amended Complaint, the original Defendants have not withdrawn their motion to dismiss the original Complaint.
CONTENTIONS OF THE PARTIES
Defendants first argue that the three year statute of limitations for commencing a personal injury action had expired prior to Plaintiff filing both the original and Amended Complaints. Thus, Defendants assert, Plaintiff filed the Amended Complaint, and changed the date of injury from April 14, 2018 to October 11, 2019, to circumvent expiration of the statute of limitations. Defendants also assert that, notwithstanding "the relation-back doctrine," the Amended Complaint is nonetheless untimely because the original Complaint was filed after the statute of limitations period expired. Defendants add that, in any event, the relation-back doctrine is inapplicable because they did not have notice of the accident prior to expiration of the statute of limitations.
Defendants further contend that they have submitted documentary evidence which conclusively establishes its defense that Plaintiff has sued improper parties. Specifically, Defendants contend that their documentary evidence establishes that Defendant The Brazen Fox is neither a corporate entity nor legal company name and that Defendants Declan Rainsford ("Rainsford") and Rory Dolan ("Dolan") do not have any involvement with Defendant The Brazen Fox, LLC, a wholly separate and unrelated entity.
Defendants also argue that the Complaint fails to state a cause of action against Rainsford and Dolan. Defendants assert that the two are principals of a corporate entity and did not have any direct or personal involvement in the accident. Defendants add that Plaintiff has failed to "pierce the corporate veil" to establish liability against them.
Finally, Defendants contend that they are entitled to summary judgment because there are no genuine issues of material fact. Specifically, Defendants assert that they have established that none of the Defendants are proper parties to this action for the "various reasons set forth above" (Affirmation in Support, ¶ 24).
Plaintiff responds that the April 14, 2018 accident date in the original Complaint was amended to correct a typographical error - not to circumvent the expired statute of limitations. Plaintiff asserts that, pursuant to CPLR 3025(a), he amended his Complaint as of right. In support, Plaintiff submits the Affidavit of counsel's paralegal, an Affidavit from Plaintiff, Plaintiff's October 14, 2019 medical records, and the October 21, 2019 Operative Report.
Plaintiff contends that he has satisfied the three requirements for application of the relation-back doctrine. Accordingly, his Amended Complaint was timely filed and he is permitted to add Defendant DR and RD, Inc. even though the statute of limitations had expired. .
Plaintiff also contends that he has sued the proper parties. Plaintiff asserts that Defendants' argument that the Amended Complaint fails to state a cause of action and pierce the corporate veil to impose personal liability on Rainsford and Dolan is premature because discovery has not been exchanged.
In reply, Defendants contend that they have established that, using the dates of occurrence pled in both the original and Amended Complaints, the pleadings clearly were filed after expiration of the statute of limitations. Defendants again add that Plaintiff has failed to establish applicability of the relation-back doctrine. Accordingly, Defendants contend that both the original and Amended Complaints amount to two, time-barred actions.
DISCUSSION A. The Original Complaint
1. Dismissal Pursuant to 3211(a)(1), (5) and (7):
Pursuant to CPLR 3025,
[a] Amendments without leave. A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading . responding to it.
There is no dispute that, pursuant to CPLR 3025(a), on November 15, 2022, Plaintiff filed the Amended Complaint as of right. Additionally, there is no dispute that the original Defendants' Motion Sequence Number 1 is solely addressed to dismissal of the original, now superceded, Complaint. Finally, there is no dispute that the original Defendants have not withdrawn their motion to dismiss.
"When an amended complaint has been served, it supercedes the original complaint and becomes the only complaint in the case" (Seidler v Knopf, 186 A.D.3d 886 [2d Dept 2020], see also 100 Hudson Tenants Corp, v Laber, 98 A.D.2d 692 [1st Dept 1983]; Bankers Conseco Life Insurance Company, et al, v Egan - Jones Ratings Company, 193 A.D.3d 539 [1st Dept 2021]). Accordingly, the original Complaint is disregarded, the Amended Complaint is Plaintiff's only pleading, and the action must proceed as though the original pleading had never been served (Halmar Distributors, Inc. v Approved Mfg. Corp., 49 A.D.2d 841 [1st Dept 1975]). Consequently, the original Defendants' motion, pursuant to CPLR 3211 (a) (1), (5) and (7), to dismiss the original Complaint or, in the alternative, pursuant to CPLR 3212, for summary judgment must be summarily denied.
2. Summary Judgment
In any event, with respect to the original Defendants' motion for summary judgment, it was submitted prior to any of the Defendants answering either of the Complaints. Accordingly, issue had not been joined.
"A motion for summary judgment brought before a defendant has answered the complaint is premature, and must be denied" (SHG Resources, LLC v SYTR Real Estate Holdings LLC, Shlomo Rechnitz, 201 A.D.3d 610 [1st Dept 2022], citing City of Rochester v Chiarella, 65 N.Y.2d 92, 101 [1985]). "The requirement that a motion for
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the complaint is barred by the applicable statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Barry v Cadman Towers, Inc., 136 A.D.3d 951, 952 [2d Dept 2016]; see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901 [2d Dept 2014]) . "The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable, or whether the summary judgment may not be made before issue is joined (see CPLR 3212[a]), 'is strictly adhered to'" (OneWest Bank, FSB v Bernstein, 196 A.D.3d 591 [2d Dept 2021] quoting City of Rochester v Chiarella,, supra) . Therefore, even if Plaintiff had not filed the Amended Complaint, the original Defendants' motion for summary judgment with respect to the original Complaint would have to be summarily denied.
B. The Amended Complaint
As relevant here, CPLR 3211 provides:
(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that: (5) the cause of action may not be maintained because of ... statute of limitations.
"On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (5) on the ground that the complaint i s barred by the applicable statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired" (Barry v Cadman Towers, Inc ., 136 A.D.3d 951, 952 [2d Dept 2016); see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901 [2d Dept 2014)) . "The burden then shifts to the plaintiff to raise a question of fact as t o whether the statute of limitations is tolled or is otherwise inapplicable, or whether the action was actually commenced within the applicable limitations period" (Griffin v Perrotti, 121 A.D.3d 1041, 1042 [2d Dept 2014]; see Zaborowski v Local 74, Serv. Empls. Inti. Union, AFL-CIO, 91 A.D.3d 768, 768-769 [2d Dept 2012]).
Defendants contend that Plaintiff's cause of action for negligence, as pled in the Amended Complaint, is time-barred. There is no dispute that, on November 15, 2022, Plaintiff filed its Amended Complaint alleging that the accident occurred on October 11, 2019. This time period is greater than the three year personal injury statute of limitations (CPLR 214 [5]). Therefore, Defendants have met their prima facie burden of establishing that this action was not timely commenced.
In response, Plaintiff relies on the relation-back doctrine. Once a defendant has demonstrated that the statute of limitations has expired, "[t]he burden is on the plaintiff to establish the applicability of the relation back doctrine." (Cardamone v Ricotta vVosswindel, et al., 47 A.D.3d 659 [2d Dept 2008]). Here, Plaintiff has failed to do so.
Pursuant to CPLR 203 (f),
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 or occurrences, or series
of transactions or occurrences, to be proved pursuant to the amended pleading.
"The relation-back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for Statute of Limitations purposes where the two defendants are 'united in interest'" (Davis v Larhette, 39 A.D.3d 693, 693-694 [2d Dept 2007]), citing Poulard v Papamihlopoulos, 254 A.D.2d 266 [2d Dept 1998], quoting Buran v Coupal, 87 N.Y.2d 173, 177 [1995]). "For the rule allowing relation back to the date of service or filing of the original complaint under CPLR 203(b) or (c) to be operative in an action in which a party is added beyond the application limitations period, a plaintiff is required to prove 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 him or her as well" (Cardamone v Ricotta v Vosswindel, supra, see also, Buran v Coupal, supra, at 178)-.
As correctly argued by Defendants, where the statute of limitations expires before the initial complaint is filed, CPLR 203(f) does not provide an avenue to cure the complaint by amendment. Under those circumstances, there is no valid complaint to which the amendment can "relate back" (see Goldberg v Camp Mikan-Recro, 42 N.Y.2d 1029 [1977] [holding that CPLR 203(f) is unavailable because its application depends upon the existence of a valid pre-existing action]; see also, U.S. Bank Natl Ass'n v DLJ Mortgage Capital, Inc., 33 N.Y.3d 84 [2019][holding that "as our case law establishes, CPLR 203(f) applies only in those cases where a valid, pre-existing action has been filed"]).
Here, the original Complaint, filed on September 21, 2022, sets the date of Plaintiff's injury as April 14, 2018. Clearly, The date of occurrence predates commencement of the action by more than three years. Accordingly, the pre-existing claim in the original Complaint were time-barred. Consequently, Plaintiff cannot now rely on the relation-back doctrine to support its argument that this action was timely commenced.
In light of the foregoing, the action is time-barred as against all Defendants. Therefore, Defendants' motion, pursuant to CPLR 3211 (a) (5), to dismiss the Amended Complaint on the ground that the action was initiated after expiration of the statute of limitations must be granted. Based on the foregoing, Defendants' additional arguments need not be considered.
The remaining contentions do not compel a different result. Any additional relief requested by any party and not expressly considered herein is denied. .
Accordingly, based on the foregoing,, it is hereby
ORDERED, that the motion by Defendants The Brazen Fox, Declan Rainsford, Rory Dolan, The Brazen Fox, LLC, and DR and RD, Inc. for an Order, pursuant to CPLR 3211 (5), dismissing Plaintiff John Randolph's Amended Complaint is granted and the action is hereby dismissed.
The foregoing constitutes the Decision and Order of the Court.