From Casetext: Smarter Legal Research

Spence v. Bear Stearns Co., Inc., Page 602

Appellate Division of the Supreme Court of New York, First Department
Sep 16, 1999
264 A.D.2d 601 (N.Y. App. Div. 1999)

Opinion

September 16, 1999

Order, Supreme Court, New York County (Carol Huff, J.), entered August 3, 1998, which, to the extent appealed from, granted plaintiff's motion for leave to amend her complaint to add defendants/third-party defendants/fourth-party plaintiffs Colton Hartnick Yamin Sheresky ("Colton Hartnick") and Norman Sheresky ("Sheresky") as direct defendants, to assert two causes of action against them for legal malpractice, to amend her complaint as to defendant/third-party plaintiff Bear Stearns Co., and for consolidation, unanimously reversed, on the law, the facts and in the exercise of discretion, with costs, the motion to amend the complaint denied and the action captioned Spence v. Colton Hartnick Yamin Sheresky, et al., severed.

Jerome Leitner for Plaintiff-Respondent.

Arthur D. Felsenfeld for Defendant-Respondent-Appellant.

Joseph G. Colbert Defendants-Appellants-Respondents.

ELLERIN, P.J., LERNER, ANDRIAS, FRIEDMAN, JJ.


It was an improvident exercise of discretion to grant leave to amend the complaint as to defendant Bear Stearns Co. in light of the inexcusable delay of 6 1/2 years in seeking to amend, to add the new theory of liability and to increase the ad damnum clause, and the lack of any evidentiary showing of merit (see, Morgan v. Metropolitan Bronx Surface Tr. Operating Auth., 238 A.D.2d 278, lv dismissed 90 N.Y.2d 935; Clayton Webster Corp. v. Bozell Jacobs, Inc., 167 A.D.2d 145).

Similarly, it was error to allow plaintiff to amend her complaint to add Sheresky and Colton Hartnick as direct defendants. Plaintiff's legal malpractice claims against Sheresky and Colton Hartnick are dependent upon her new cause of action against Bear Stearns. She invokes the relation back doctrine to demonstrate that her claims against these defendants relate back to Bear Stearns' third-party action against them. However, the record reveals that plaintiff's legal malpractice claims were barred by the three-year Statute of Limitations when the third-party action was commenced (CPLR 214). plaintiff's malpractice claims do not fall within the relation back doctrine and she may not avoid the time bar by invoking the doctrine (Liverpool v. Arverne Houses, Inc., 67 N.Y.2d 878; Zamani v. Rite Way Bldg. Indus., 254 A.D.2d 283, 678 N.Y.S.2d 291).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Spence v. Bear Stearns Co., Inc., Page 602

Appellate Division of the Supreme Court of New York, First Department
Sep 16, 1999
264 A.D.2d 601 (N.Y. App. Div. 1999)
Case details for

Spence v. Bear Stearns Co., Inc., Page 602

Case Details

Full title:KATHRYN SPENCE, Plaintiff-Respondent, v. BEAR STEARNS CO., INC.…

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

Date published: Sep 16, 1999

Citations

264 A.D.2d 601 (N.Y. App. Div. 1999)
694 N.Y.S.2d 654

Citing Cases

Krolick v. Natixis Sec. North America Inc.

Zaid Theatre Corp. v. Sona Realty Co., 18 A.D.3d at 355; Pacheco v. Fifteen Twenty Seven Assoc., 275 A.D.2d…

Krolick v. Natixis Sec. N. Am. Inc.

Zaid Theatre Corp. v. Sona Realty Co., 18 AD3d at 355;Pacheco v. Fifteen Twenty Seven Assoc., 275 A.D.2d 282,…