Opinion
156919/2015
12-15-2020
Joy SNEED, Plaintiff, v. DEVER PROPERTIES LLC, Onyx Restoration Works, Ltd., Defendant.
Plaintiff: Linden Law LLC, 1359 Broadway, Suite 820, New York, NY 10018, By: Jason Andrew Linden, Esq. Defendant Dever Properties LLC: Koster, Brady & Nagler, LLP, One Whitehall Street, 10th Floor, New York, NY 10004, By: Jason Joseph Lavery, Esq. Defendant Onyx Restoration Works, LTD.: Gallo Vitucci Klar LLP, 90 Broad Street, 12th Floor, New York, NY 10004, By: Howard L Cogan, Esq., and Ava R. Maynard, Esq.
Plaintiff: Linden Law LLC, 1359 Broadway, Suite 820, New York, NY 10018, By: Jason Andrew Linden, Esq.
Defendant Dever Properties LLC: Koster, Brady & Nagler, LLP, One Whitehall Street, 10th Floor, New York, NY 10004, By: Jason Joseph Lavery, Esq.
Defendant Onyx Restoration Works, LTD.: Gallo Vitucci Klar LLP, 90 Broad Street, 12th Floor, New York, NY 10004, By: Howard L Cogan, Esq., and Ava R. Maynard, Esq.
Robert R. Reed, J.
In the case at hand, plaintiff alleges that she sustained injuries on September 7, 2013, when she was at her job as a security guard at 215 Park Avenue South in Manhattan. Defendant Dever Properties LLC (Dever) owns the property (NYSCEF Doc. No. 1). The original complaint alleges, in particular, that when plaintiff closed the bathroom door, "a metal bar from the door mechanism fell" and hit her (id. , ¶ 15), and that, as a result, she suffered hand and wrist injuries. The original summons and complaint are dated June 30, 2015. Plaintiff's former lawyer, George D. Silva, of Bisogno & Meyerson, LLP, verified the complaint.
Defendant's answer is dated August 14, 2015 (NYSCED Doc. No. 3). The answer generally denies plaintiff's allegations and asserts numerous affirmative defenses. Andrew S. Levine, the Chief Legal Officer and Executive Vice President of SL Green Realty Company (SL Green), the affiant, was authorized by defendant to swear to the pleadings.
In a stipulation dated May 25, 2017, the parties agreed to consolidate this action with an action plaintiff had commenced against Onyx Restoration Works, LLC (Onyx) (NYSCEF Doc. No. 11). On June 25, 2018, however, the three parties to the consolidated action signed a "Stipulation Discontinuing the Action" (NYSCEF Doc. No. 93), which was filed on December 1, 2020. Although the language in the title and the stipulation suggest that the entire action was discontinued, both the parties' conduct in continuing this litigation and an attorney affirmation in a motion not yet before this court (NYSCEF Doc. No. 78 ¶ 4) confirm that the action was only discontinued against Onyx.
The stipulation did not amend the caption. The court shall do so in this order.
Since the joinder of issue, the parties have engaged in substantial discovery. There have been numerous discovery conferences (NYSCEF Doc. Nos. 7-10, 13-15, 17, 20-21, 49-50) and one discovery motion relating to videotapes and photographs (see NYSCEF Doc. No. 22). On February 20, 2020, plaintiff filed the Note of Issue, indicating that discovery was complete and that the case was ready for trial (NYSCEF Doc. No. 51).
On May 14, 2020, plaintiff filed this motion to amend the complaint and add SL Green as a defendant. According to the proposed amended complaint, SL Green and Dever both owned, operated, maintained, and repaired the building in question (NYSCEF Doc. No. 57). Defendant opposes the motion. There is no reply on file. For the reasons below, the court denies the motion.
In support of her application, plaintiff points out that courts freely grant leave to amend a complaint where there is no prejudice, unfair advantage or surprise. Plaintiff states that, here, she does not change the alleged facts in the complaint, there is no harm or surprise. Further, she argues that Dever and SL Green were aware of the relationship between them — and notes, specifically, that on July 11, 2018, Dever produced an SL Green employee as its deposition witness. Plaintiff's affirmation in support states that, because Dever produced the SL Green employee, the two corporations clearly "are united in interest" (NYSCEF Doc. No. 55 ¶ 10).
Although this is not the basis for the denial of this motion, the court notes that plaintiff's statement is inaccurate. Plaintiff's notice of motion and supporting papers indicate that the sole goal of the amendment is to add SL Green as a party. However, the original complaint states that she was struck by a metal at the bathroom door (NYSCEF Doc. No. 1 ¶ 15), and the proposed complaint states that a maglock injured her when it fell from the front door (NYSCEF Doc. No. 57 ¶ 28). The latter statement is consistent with the representations that plaintiff has made to defendant and to the court. Plaintiff may request permission to amend the pleadings to this limited extent. Alternatively, if defendant stipulates to this limited amendment, the court will so order it.
SL Green opposes the motion in its capacity as the proposed new party because "it is the real party in interest and would [be] harmed if the motion [is] granted" (NYSCEF Doc. No. 61 ¶ 11 [citing Frost v. Monter , 202 AD2d 632, 632 (2d Dept 1994) ] ). SL Green raises several arguments in opposition. It points out that plaintiff does not provide an affidavit of merit or other evidence in support of her motion. Citing Schulte Roth & Zabel, LLP v. Kassover , 28 AD3d 404, 404-405 [1st Dept 2006] ), SL Green contends that this defect is fatal to her motion, and that she cannot remedy it in her reply. Further, SL Green states that the addition of a new party is untimely under the three-year statute of limitations ( CPLR § 214 [5] ). Specifically, it points out that the accident allegedly occurred on September 7, 2013, that the statute of limitations expired on September 7, 2016, and that plaintiff did not make this motion until around May 13, 2020.
SL Green also argues that plaintiff's assertion that SL Green is united in interest with defendant does not trigger the relation-back doctrine. To prevail, plaintiff has the burden of showing that the two entities are united in interest. According to SL Green, plaintiff has not satisfied this burden. Moreover, SL Green states that SL Green is not united in interest with defendant Dever. Instead, SL Green states that it is the management company for 215 Park Avenue South Associates L.P. (215 Park), the lessee of the property, and 215 Park's interests are distinct from those of defendant.
Moreover, SL Green argues, plaintiff had knowledge of its purported relationship to the case even before the July 11, 2018 deposition on which she relies in support of her motion. At her September 21, 2016 deposition, plaintiff mentioned that her employer, Classic Security Company, was owned by SL Green, among others (NYSCEF Doc. No. 65, at *10). SL Green notes that it provided a copy of the incident report to plaintiff as an exhibit to its July 11, 2016 discovery response (NYSCEF Doc. No. 63). This also should have alerted plaintiff to SL Green's potential involvement, SL Green argues, because it prepared the incident report (see NYSCEF Doc. No. 23).
In addition, as the court already has noted, SL Green's Chief Legal Officer and Executive Vice President verified the complaint.
SL Green also alleges that it would be prejudiced by its addition to the case. As the statute of limitations expired years ago, it did not expect to be added at this juncture. SL Green further states that it is especially harmful because discovery has already been completed and because the passage of time since plaintiff's 2013 accident precludes it from making a timely investigation of the claims. Because of this and plaintiff's failure to justify its delay and to show reasonable efforts to obtain the information necessary to bring this motion in a timely fashion, SL Green concludes that denial of the motion is appropriate. There is no reply on file by plaintiff.
Defendant also opposes the motion. Its arguments largely reiterate the grounds that SL Green has set forth. Defendant stresses that it does not have a direct relationship with SL Green, and points to the lease and the management agreement, which SL Green submits along with its papers. Also, defendant explains that it was not involved in the ongoings at the premises or its management, and, for these reasons, produced a nonparty witness who had knowledge of the incident. This does not show that the two companies are united in interest, defendant argues. Like SL Green, defendant alleges that plaintiff's lack of diligence in bringing this motion in a timely fashion precludes the requested relief.
Defendant further argues that the amendment will prejudice it. It explains that prejudice will occur because, among other things, 1) defendant produced an SL Green employee for deposition, and defendant would not call on the SL Green employee if SL Green was an opposing party, and 2) defendant's "strategy in defending the complaint will be undermined [as it] relied on the statute of limitations for repose and made decisions accordingly" (NYSCEF Doc. No. 70, ¶ 36). Defendant additionally argues that, as SL Green has stated, the relation back doctrine is not applicable. It points out that, because the owner and the managing agent of the net lessee have no direct relationship, vicarious liability does not apply (citing, inter alia , Burbano v. New York City , 172 AD3d 575, 576 [1st Dept 2019] [involving correction officer and city] ). Defendant analogizes the case at hand to Xavier v. RY Mgt. Co., Inc. (45 AD3d 677, 679 [2d Dept 2007] ), in which the Second Department denied relief because the interests and defenses of the owner and the managing agent of the building where the incident occurred were divergent.
Courts freely grant leave to amend a pleading under CPLR 3025 (b) unless the opposing party can show that the delay causes prejudice or surprise ( O'Halloran v. Metropolitan Transp. Auth. , 154 AD3d 83, 86 [1st Dept 2017] ). If the statute of limitations has expired, a plaintiff may add a claim if it relates back to the incident alleged in the complaint (id. ). However, "allowing the relation back of amendments adding new defendants implicates more seriously these policy concerns than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court" ( Buran v. Coupal , 87 NY2d 173, 178 [1995] ). Accordingly, the court will allow the amendment only if the plaintiff shows that (1) the claims arise out of the same occurrence, (2) the proposed new defendant is ‘united in interest’ with the original defendant and, due to this relationship, the proposed new party is chargeable with notice of the of the action such that there is no prejudice, and (3) the proposed new defendant "knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well." (id. [internal quotation marks and citation omitted]; see CPLR 203 [c] ). Further, where the statute of limitations has expired, the plaintiff has the burden of showing that the relation-back doctrine applies ( Garcia v. New York-Presbyt. Hosp. , 114 AD3d 615, 615 [1st Dept 2014] ).
As stated, in this motion plaintiff seeks to add a new defendant after the statute of limitations has expired. This triggers the three-pronged test set forth in Buran . Although, as plaintiff asserts, the same facts are involved in the claims against SL Green, plaintiff has not satisfied prongs two and three of her burden. Indeed, plaintiff does no more than make the conclusory assertion that SL Green and defendant "are united in interest. This is evident through the fact that DEVER produced an SL GREEN employee as a witness for a deposition in this case" (NYSCEF Doc. No. 55, ¶ 10). However, there are other reasons that a party may produce a non-party witness for deposition — for example, where, as here, the non-party was on-site and prepared the incident report. Further, as defendant argues, it is not united in interest with SL Green because they do not "share exactly the same jural relationship in the subject action" ( Xavier , 45 AD3d at 679 ; see also Bossung v. Rebaco Realty Holding Co., N.V. , 169 AD3d 538 [1st Dept 2019] [denying relief where there was no evidence that the manager and the owner of the building where the incident occurred were vicariously liable for each other's actions] ).
In addition, "[t]he moving party ... has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations" ( Bumpus v. New York City Tr. Auth. , 66 AD3d 26, 35 [2d Dept 2009] ). In the matter at hand, plaintiff did not act promptly to add SL Green. Plaintiff relies on the fact that, on July 11, 2018, defendant produced an SL Green employee for deposition. However, plaintiff did not file this motion until May 14, 2020, and plaintiff does not provide a reason for this delay. Further, there is ample evidence that plaintiff knew of SL Green's protective involvement even earlier than this, and that she received additional notice on other occasions. For example, defendant's July 11, 2016 response to plaintiff's discovery demands included an incident report, which SL Green prepared (NYSCEF Doc. No. 64, at **8). SL Green's opposition to plaintiff's discovery motion includes the affidavit of SL Green's Secretary Edward A. Kotite, which defendant provided to plaintiff in January 2019 (NYSCEF Doc. No. 67). That affidavit states that "Neither Dever Properties N.V. nor Dever Properties, LLC, maintained any offices or personnel on the premises. SL Green, Inc., based on the agreements, would have the authority to hire sub-contractors for services in and around the building, including security" (id. , ¶ 5). Defendant also provided plaintiff with the lease and the management agreements, both of which show that SL Green was the manager of the property (NYSCEF Doc. Nos. 62, 63). Significantly, SL Green includes with its papers plaintiff's deposition testimony, which shows that she worked at the site well over a year before her accident and that she knew SL Green was the building manager (see generally NYSCEF Doc. No. 65). "Under these circumstances, there was no ‘mistake’ by plaintiff as to the proper identity of the parties, within the meaning of the relation-back doctrine, and [this] defendant[ ] had every reason to believe that plaintiff had no intent to sue [it] and that the matter had been laid to rest as far as [it was] concerned" ( Crawford v. City of New York , 129 AD3d 554, 555 [1st Dept 2015] ). Therefore, denial of the motion is proper.
See also fn 3, supra .
Even if the burden were not on plaintiff, the court would not allow the amendment. In their opposition papers, defendant and SL Green have shown that the amendment is improper. Specifically, SL Green has established that it is not united-in-interest with defendant. The lease and management agreements that defendant provided to plaintiff show that SL Green was the manager, but not the owner , of the property. Plaintiff has not shown any evidence supporting her contention. Finally, for the reasons SL Green and defendant have proffered, both will sustain prejudice due to the length of the delay, as SL Green has lost the ability to conduct discovery while the incident was fresh in people's memories and defendant would be forced to significantly alter its legal strategy.
Accordingly, it is
ORDERED that the motion is denied; and it is further
ORDERED that the caption is amended to reflect the discontinuance, and all papers shall use the following caption:
_________________________
Index No. 156919/2015
JOY SNEED,
Plaintiff,
v
DEVER PROPERTIES, LLC,
Defendant.
_________________________
This constitutes the decision and order of this court.