Opinion
No. 143469.
07-18-2016
Lowell T. WARNER and Lisa M. Warner, Plaintiffs, v. Kyle E. KAIN, John E. Kain, Domino's Pizza, LLC and North Country Pizza, Inc., Defendants.
The Mills Firm, Clifton Park (Christopher K. Mills, of counsel), for plaintiffs. Law Office of Fred Lutzen, East Syracuse (Fred Lutzen, of counsel), for defendants Kain and Domino's Pizza, LLC. Melvin & Melvin, PLLC, Syracuse (Susan E. Otto, of counsel), for defendant North Country Pizza, Inc.
The Mills Firm, Clifton Park (Christopher K. Mills, of counsel), for plaintiffs.
Law Office of Fred Lutzen, East Syracuse (Fred Lutzen, of counsel), for defendants Kain and Domino's Pizza, LLC.
Melvin & Melvin, PLLC, Syracuse (Susan E. Otto, of counsel), for defendant North Country Pizza, Inc.
ROBERT J. MULLER, J.
This is a motion by North Country Pizza. Inc. (hereinafter “NC Pizza”), to reargue the denial of its prior Cross–Motion for dismissal of Plaintiffs' Amended Verified Complaint based upon a lack of personal jurisdiction (see CPLR § 3211[a][8] ).
For the reasons that follow, the Court grants NC Pizza's motion. Plaintiffs' failure to follow the procedural mandates of CPLR § 1003 prior to the filing and service of its amended summons and verified complaint, constitutes a fatal procedural defect and, as such, plaintiffs' amended pleading must be dismissed. The joinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and noncompliance renders the pleadings jurisdictionally defective. See Crook v. du Pont de Nemours, 81 N.Y.2d 807 [1993], affirming 181 A.D.2d 1039 ; Kelley v. Schneck, 106 AD3d 1175 [2013] ; Yadegar v. International Food Mkt., 306 A.D.2d 526, 526 [2003] ; Halliday v. Town of Halfmoon, 235 A.D.2d 709, 711 [1997]. Plaintiffs' counsel's belief and reliance that an insurer or their legal counsel consented to the supplemental pleadings is of no avail.
Although a defendant may waive the “jurisdictional defect” of improper joinder where the defendant answers the amended complaint without raising an objection to the improper joinder, and then delays until after the limitations period has run before moving to dismiss (see Tarallo v. Gottesman, 204 A.D.2d 303, 303 [1994] ; Santopolo v. Turner Construction Co., 181 A.D.2d 429 [1992] ; Gross v. BFH Co., Inc., 151 A.D.2d 452 [1989] ; McDaniel v. Clarkstown Central District No. 1, 83 A.D.2d 624, 625 [1981] ; compare Public Adm'r of Kings County v. McBride, 15 AD3d 558, 559 [2005] ), NC Pizza raised the improper joinder in its first affirmative defense.
The motor vehicle accident which is the subject of the complaint occurred on June 22, 2012, the amended summons and complaint was filed on May 28, 2015, just prior to the expiration of the three year statute of limitations. This determination that the amended summons and complaint is a ity does not address whether the claim may now ever be brought (see CPLR § 203[b] ) as that issue was not previously raised in the motion for which reargument has now been granted.
NOW THEREFORE, based upon the foregoing, it is hereby
ORDERED that, pursuant to CPLR § 2221(d), NC Pizza's motion for reargument is GRANTED; and it is further
ORDERED that, pursuant to CPLR § 3211(a)(8), plaintiffs' amended summons and verified complaint is DISMISSED, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated February 1, 2016 and the submissions enumerated. Counsel for the moving defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR § 5513.
Papers Reviewed:
1. Affidavit of Susan E. Otto, Esq. sworn to February 1, 2016 together with Exhibits “1–3”;
2. Supporting Memorandum of Law dated February 1, 2016;
3. Affirmation in Opposition of Christopher K. Mills, Esq., dated March 29, 2016;
4. Affidavit of Susan E. Otto, Esq. sworn to June 23, 2016 and
5. Reply Memorandum of Law dated June 22, 2016.