Campbell v. Bradco Supply Co.

192 A.D.3d 967

140 N.Y.S.3d 776 (Mem)

Margaret CAMPBELL, appellant,

v.BRADCO SUPPLY COMPANY, et al., respondents.

2018–01805

Index No. 11307/10

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 19, 2020

March 24, 2021

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated October 25, 2016. The order, insofar as appealed from, granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the ninth and tenth causes of action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In January 2009, the plaintiff entered into a contract to purchase kitchen cabinets from the defendant Bradco Supply Company (hereinafter Bradco) through its salesperson, the defendant Harris Boshak, who also designed the layout of the cabinets in the plaintiff's kitchen. The cabinets were delivered on February 13, 2009. According to the plaintiff, on February 14, 2009, she notified Boshak that she was dissatisfied with the cabinets, and thereafter continued to contact him and other representatives of Bradco regarding various problems with the cabinets. She asserts that "ultimately, the overall design and installation instructions provided by Mr. Boshak were faulty, insufficient, flawed and unusable." She alleged, inter alia, that some cabinet doors would not open completely, cabinet doors interfered with the use of appliances, and that essentially, the overall design was defective. The plaintiff alleges that after many conversations and meetings with Bradco representatives, between February 20, 2009, and April 8, 2009, the defendants failed to remedy the problems. By summons and complaint dated February 23, 2010, the plaintiff commenced this action, inter alia, to recover damages for breach of contract, breach of implied warranties, and breach of the implied warranty of fitness and merchantability. Subsequent thereto, in March 2016, the Supreme Court granted the plaintiff's motion for leave to amend the complaint to add the ninth and tenth causes of action, to recover damages for breach of a settlement agreement and personal injuries, respectively. In their answer to the amended complaint, the defendants asserted, as an affirmative defense, that the ninth and tenth causes of action were barred by the statute of limitations. In September 2016, the defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the ninth and tenth causes of action. By order dated October 25, 2016, the court granted the defendants' motion. The plaintiff appeals. We affirm.

It is undisputed that the plaintiff's ninth and tenth causes of action, which were raised for the first time in the amended complaint, were time-barred (see CPLR 213[2] ; 214[5]). "However, under the relation-back doctrine, a plaintiff may interpose a claim or cause of action which would otherwise be time-barred, where the allegations of the original complaint gave notice of the transactions or occurrences to be proven and the cause of action would have been timely interposed if asserted in the original complaint" ( Carlino v. Shapiro, 180 A.D.3d 989, 990, 119 N.Y.S.3d 234 [internal quotation marks omitted]; see CPLR 203[f] ). Contrary to the plaintiff's contention, the allegations in the original complaint gave no notice of the facts, transactions, and occurrences giving rise to the proposed supplemental claims raised in the ninth and tenth causes of action and, thus, the relation-back doctrine does not apply (see CPLR 203[f] ; Carlino v. Shapiro, 180 A.D.3d at 990–991, 119 N.Y.S.3d 234 ; Sabella v. Vaccarino, 263 A.D.2d 451, 452, 692 N.Y.S.2d 475 ). Therefore, the Supreme Court properly granted the defendants' motion pursuant to CPLR 3211(a) to dismiss those causes of action (see Hustedt Chevrolet, Inc. v. Jones, Little & Co., 129 A.D.3d 669, 8 N.Y.S.3d 917 ).

In light of our...