Vasquez v. Tri-State Lumber Ltd.

2023 NY Slip Op 50390(U)

Edward Vasquez, Plaintiff, v. Tri-State Lumber Ltd., Tri-State Lumber Inc., Rise Development Partners LLC, Rise Conrete LLC, Happy Living Development LLC and West 37th St LLC, Defendants.

Tri-State Lumber Ltd., Third-Party Plaintiff, v. Rise Development Partners LLC, Rise Conrete LLC, Happy Living Development LLC and West 37th St LLC, Third-Party Defendants.

Happy Living Development LLC and West 37th St LLC, Second Third-Party Plaintiffs, v. Capital Concrete NY Inc., Second Third-Party Defendant.

Index No. 514316/2019

Supreme Court, Kings County

April 27, 2023

Unpublished Opinion

Liakis Law, New York City (Boris Bernstein of counsel), for Edward Vasquez, plaintiff. Gannon, Rosenfarb & Drossman, New York City (Angelo Rios of counsel), for Tri-State Lumber Ltd and Tri-State Lumber Inc., defendants.

Gartner & Bloom, New York City (Ethan Ruby of counsel) for Happy Living Development LLC and West 37th ST LLC defendants.

Fuchs Rosenzweig PLLC, New York City (Mehreen Hayat of counsel), for Capital Concrete NY Inc., second third-party defendant.

AARON D. MASLOW, Justice of the Supreme Court.

The following numbered papers were read on this motion:

NYSCEF Document Nos. 163-178 (notice of motion, affirmation in support, exhibits, and affirmation of service

NYSCEF Document Nos. 181-188 (affirmation in opposition and exhibits)

NYSCEF Document No. 192-193 (reply affirmation, word-limitation certification, and affirmation of service)

Issue Presented

Where the 228-day period created by former Gov. Andrew Cuomo's Executive Orders pertaining to statutes of limitations issued during the COVID-19 pandemic (referred to herein as the "Cuomo Period") commenced after a personal injury negligence cause of action accrued and ended before three years had elapsed from the accrual date-a three-year period being applicable to causes of action for personal injuries-did said Executive Orders extend the three-year statute of limitations by 228 days?

Background

This is an action to recover damages for personal injuries allegedly sustained by Plaintiff Edward Vasquez from debris which fell from a vehicle owned, operated, or controlled by Defendants at a construction site while he was walking on the sidewalk on April 12, 2019. Plaintiff filed his original Summons and Verified Complaint on June 27, 2019. The named Defendants were Tri-State Lumber Ltd. and Tri-State Lumber Inc. On September 5, 2019, Defendants Tri-State Lumber Ltd. and Tri-State Lumber, Inc. interposed an answer.

On September 18, 2019, Defendant Tri-State Lumber Ltd., in the capacity as a Third-Party Plaintiff, commenced a third-party action against Third-Party Defendants Rise Development Partners LLC, Rise Concrete LLC, Happy Living Development LLC, and West 37th Street LLC. On August 14, 2020, Plaintiff filed a Supplemental Summons and Amended Complaint to include direct causes of action against Rise Development Partners LLC, Rise Concrete LLC, Happy Living Development LLC, and West 37th Street LLC.

On September 24, 2021, Defendants Happy Living Development LLC and West 37th Street LLC, in the capacity as Second Third-Party Plaintiffs, commenced a second third-party action against Capital Concrete NY Inc., claiming that the latter had agreed to defend, indemnify, and hold them harmless.

Throughout the aforesaid period of time following the initiation of this action, various parties filed their responses which included counterclaims and cross-claims, but these details are tangential for the purposes of the present discussion.

Accordingly, prior to this motion, the caption in this action read as follows:

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EDWARD VASQUEZ, Plaintiff, -against-

TRI-STATE LUMBER LTD., TRI-STATE LUMBER INC., RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Defendants.

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TRI-STATE LUMBER LTD., Third-Party Plaintiff, -against-

RISE DEVELOPMENT PARTNERS LLC, RISE CONRETE LLC, HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Third-Party Defendants.

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HAPPY LIVING DEVELOPMENT LLC and WEST 37th ST LLC, Second Third-Party Plaintiffs, -against-

CAPITAL CONCRETE NY INC., Second Third-Party Defendant.

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On April 22, 2022, Plaintiff moved for leave to supplement its Summons and amend its Complaint to now include a direct cause of action against Capital Concrete NY Inc., the entity brought into this lawsuit as a Second Third-Party Defendant by Defendants and Second Third-Party Plaintiffs Happy Living Development LLC, and West 37th Street LLC. Plaintiff alleged that Capital Concrete NY Inc., owned, operated, supervised construction at, and maintained and managed, the location where Plaintiff sustained his injuries, and caused or created the alleged negligent conditions.

Plaintiff's motion, now before this Court as Motion Sequence No. 5, also sought leave to serve Capital Concrete NY Inc.; to deem its Second Supplemental Summons and Amended Verified Complaint (now including Capital Concrete NY Inc. as a direct Defendant) served nunc pro tunc, and to amend the caption accordingly.

Capital Concrete NY Inc. opposed Plaintiff's motion herein, arguing that the time for Plaintiff to have moved for the relief of adding it as a direct Defendant expired on April 12, 2022, which was three years after the cause of action accrued (on April 12, 2019). The three-year statute of limitations for personal injury actions pursuant to CPLR 214 (5) strictly applied, argued Capital Concrete NY Inc. April 22, 2022, when the within motion was filed, was ten days past April 12, 2022. ^[1]

Discussion

A. Relation-Back Doctrine

A supplemental summons and amended complaint may be served after the expiration of the statute of limitations. If a claim is made outside of the original statute of limitations, it may nonetheless be considered timely if it relates back to the original pleading (s ee Monir v Khandakar, 30 A.D.3d 487 [2d Dept 2006]). In order to apply the relation-back doctrine it must be demonstrated that: (1) "all of the claims must arise out of the same conduct, occurrence, or transaction"; (2) the parties must be united in interest "so that they can be charged with notice of the institution of the lawsuit and not be prejudiced in maintaining their defense on the merits"; and (3) Defendants "must have actually or constructively known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against them as well" (id. at 488, citing Buran v Coupal, 87 N.Y.2d 173, 178 [1995]; Mondello v New York Blood Ctr. Greater NY Blood Program, 80 N.Y.2d 219, 226 [1992]). Here, the parties do not dispute that the claims arise from the "same conduct, occurrence, or transaction," as all injuries sustained by the Plaintiff were caused by the same falling debris. Accordingly, the first element has been met.

However, the remaining two qualifications are problematic. The courts have clarified the second element by stating that parties are united in interest only where the interest in the subject matter of the action is such that their defenses will be the same and they will either stand or fall together with respect to the plaintiff's claim. When parties are united in interest, the judgment against one will similarly affect the other. (Losner v Cashline, L.P., 303 A.D.2d 647, 648 [2d Dept 2003], citing Prudential Ins. Co. v Stone, 270 NY 154 [1936]; Gatto v Smith-Eisenberg, 280 A.D.2d 640 [2d Dept 2001]; Desiderio v Rubin, 234 A.D.2d 581 [2d Dept 1996]); Connell v Hayden, 83 A.D.2d 30 [2d Dept 1981]). The Second Third-Party Summons and Complaint, as filed by Defendants Happy Living Development LLC and West 37th St LLC, states, in relevant part, "That the incident complained of by Plaintiff, if it in fact occurred, and if it in fact occurred in the fashion alleged by Plaintiff, was caused by, arose out of, resulted from and/or occurred in connection with the performance of the work, labor and services contracted for by CAPITAL and/or was performed by its agents, servants, employees, and/or subcontractors" (NYSCEF Doc No. 99, ¶ 26). This manifests that these Defendants do not share the same defenses as Capital Concrete NY Inc. The second prong of the relation-back doctrine does not apply.

Furthermore, the Second Department has held that when a plaintiff knew that another defendant was involved in the action but failed to amend the complaint prior to the expiration of the statute of limitations, the additional claims did not relate back to the filing date and the amended complaint is thus untimely (s ee Contos v Mahoney, 36 A.D.3d 646 [2d Dept 2007], citing Buran, 87 N.Y.2d 173; Monir, 30 A.D.3d 487 [2d Dept 2006]; Snolis v Biondo, 21 A.D.3d 546 [2d Dept 2005]; Hughes v Bi Feng Nie, 12 A.D.3d 406 [2d Dept 2004]). Accordingly, in order to maintain timeliness, plaintiffs must bring all claims against all known parties within the three-year statute of limitations, with few exceptions. In the instant case, Plaintiff's counsel stated in open court that his client had learned of Capital Concrete NY Inc.'s involvement in the action on or about September 30, 2021, prior to the original expiration of the statute of limitations on April 12, 2022. Plaintiff's Complaint could have been amended before April 12, 2022.

Therefore since two elements of the relation-back doctrine do not apply, Plaintiff's attempt to bring in Capital Concrete NY Inc. as a direct Defen...