It is well-settled that leave to amend a pleading is to be freely granted.[1] Leave may be denied, however, if the proposed amendment is palpably insufficient or patently devoid of merit, or if it would cause undue prejudice to a party.[2] Amendments that seek to add a time-barred claim or party will be found to be patently devoid of merit,[3] unless the untimeliness can be saved by application of the relation-back doctrine.[4]
The statutory basis for the relation-back doctrine is found in CPLR 203(c) and (f).[5] CPLR 203(c) provides that “[i]n an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced.” CPLR 203(f) provides that “a claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended pleading.” Built upon those provisions, the relation-back doctrine permits, under certain defined circumstances, the commencement of claims against a party that has not been timely sued, but which relates back to the original timely complaint. The doctrine also permits the addition of untimely claims against an original defendant under some of those defined conditions.
The leading case on the relation-back doctrine is Buran v. Coupal.[6] In Buran, the relation-back doctrine was defined as requiring the plaintiff to establish all three prongs of a three-part test for the addition of untimely claims or parties. The first prong is that the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint. Second, if a new party is to be added, it must be united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in defending the action on the merits. Third, if a new party is to be added, the newly added defendant must have known, or should have known, that the action would have been timely commenced against him or her but for a mistake by the plaintiff as to the identity of the proper parties.[7]
In Bisono v. Mist Enterprises, Inc., 2024 N.Y. Slip Op. 03873 (2d Dept. July 24, 2024) (here), the Appellate Division, Second Department consider the application of the relation-back doctrine to a set of facts that the Court considered to be unusual. In Bisono, plaintiffs sought to interpose untimely claims against a proposed corporate defendant by relating those claims back under CPLR 203(c) and (f) to an individual defendant who had been timely sued, discontinued from the action before the statute of limitations had run, and re-added as a defendant after the applicable statute of limitations had expired for all parties.[8] Since no party objected to, raised any contentions concerning, or appealed the granting of leave to re-add the previously discontinued individual as a party defendant, the Court held that the relation-back doctrine applied.
Background
Bisono arose from a motor vehicle accident in March 2016. Plaintiff was driving his motor vehicle in Brooklyn, New York. As the vehicle drove by a fixed dumpster that was situated on the street, a gust of wind blew open the dumpster’s door, causing that door to strike the vehicle as it passed. The vehicle spun and hit a parked vehicle.
In 2017, plaintiffs (the driver and passenger) commenced the action to recover damages for personal injuries allegedly sustained as a result of the accident against Mist Enterprises, Inc. (hereinafter “Mist”), New York Presco, Inc. (hereinafter “Presco”), and Yakov Eisenbach. Plaintiffs alleged that their injuries were caused by defendants’ negligence in the ownership, operation, maintenance, control, and placement of the dumpster. Mist and Presco answered the complaint and asserted, inter alia, various affirmative defenses.
The individual defendant’s attorney wrote to plaintiffs’ counsel, requesting that defendant be discontinued from the action. Defendant’s attorney claimed, among other things, that defendant was not personally affiliated with or involved in the operations related to plaintiffs’ alleged injuries, that at no time did defendant possess any ownership interest in the dumpster, and that at no time was defendant personally in control of the operation, maintenance, control, or use of the dumpster. In December 2017, defendant’s attorney and plaintiffs’ attorney executed a stipulation discontinuing the action against defendant, without prejudice.
In 2019, plaintiffs, without leave of court, filed a supplemental summons and amended complaint, naming as party defendant Mist, Presco, Eisenbach, Jozefko Construction, Inc., and Design N Safety, Inc. (hereinafter “Design”).
Also in 2019, Mist and Presco moved for summary judgment dismissing the complaint. Plaintiffs opposed the motion, contending, among other things, that the moving defendants failed to demonstrate the absence of triable issues of fact. According to plaintiffs, these triable issues of fact included whether Mist improperly inspected or positioned its container.
Plaintiffs separately moved for leave to amend the complaint to add both Eisenbach and Design as party defendants. Plaintiffs claimed that discovery showed a connection between the existing defendants and Eisenbach and Design and that Eisenbach and Design knew that the incident had occurred and that the action was commenced in connection with that incident. Plaintiffs requested that under the circumstances, the motion court grant leave to amend the complaint.
Design opposed Plaintiffs’ motion but submitted no opposition on behalf of Eisenbach. Design contended that it would be unduly prejudiced if named as a new defendant after the statute of limitations had expired and dispositive motions had been made. Design urged that plaintiffs sought to assert claims that were untimely because those claims related back to prior claims that were voluntarily discontinued years ago. Since the claims against Eisenbach were abandoned or discontinued, Design and Eisenbach were not codefendants for relation-back purposes. Moreover, according to Design, Eisenbach and Design were not united in interest.
Eisenbach, individually, submitted no papers responsive to plaintiffs’ motion to re-add him as a party defendant via the proposed amended complaint. As such, as against Eisenbach, the motion was unopposed.
In an order dated February 10, 2021, the motion court, among other things, granted the motion for summary judgment dismissing the complaint against Mist and Presco, and in effect, granted that branch of plaintiffs’ motion for leave to amend the complaint to add Eisenbach as a defendant, and, in effect, denied plaintiffs’ motion for leave to amend the complaint to add Design as a defendant. The motion court did not provide any reasoning for its grant of leave to amend as to Eisenbach and its denial of leave to amend as to Design.
Plaintiffs appealed.
Looking at the factors discussed above concerning the application of the relation-back doctrine, the Court held that plaintiffs had satisfied them.
The Court held that “[a]s to the applicability of the first prong of the relation-back doctrine [– the new claims arise out of the same conduct, transaction, or occurrence as that alleged in the original complaint –] there can be no dispute.”[9] “The claims that the plaintiffs seek to interpose against Design involve the same occurrence as that of the original complaint, where an unlatched door of a debris container swung open and struck the plaintiffs’ passing vehicle,” noted the Court.[10] “Design was the permit holder of the container and maintained the container after Mist’s delivery of it to the site of the accident, and Eisenbach was the manager of work at that site,” said the Court.[11]
The Court held that plaintiffs satisfied the second prong of the doctrine—unity of interest.[12] The Court reasoned that “Eisenbach was Design’s CEO and was actively managing the construction site, which included the container at issue, on the date and at the time of the occurrence. The litigation interests of Design and Eisenbach [were] therefore united as to satisfy the second prong of the relation-back doctrine.”[13]
Finally, as to the third prong of the analysis – whether Design knew or should have known that but for a mistake by plaintiffs as to the identity of the proper parties – the Court held that the action would have been commenced against Design in the original complaint.[14] The Court found that “there [was] a fair reading of the record that had Eisenbach not been discontinued from the action based upon inaccurate representations, Design’s role at the construction site would have been revealed and an action timely commenced against it.”[15] “Further,” explained the Court, “with Eisenbach named as an original defendant in the action, Design knew or should have known that but for a mistake as to the identity of the parties, it would have been named as a party defendant as well.”[16]
With relation-back, the Court concluded that the motion court “improvidently exercised its discretion in denying leave to amend the complaint as to Design.”[17]
Having decided the applicability of the relation-back doctrine, the Court addressed “another complication” raised by the appeal – whether “the untimely party to be added to [the] action relate[d] back to an existing party that ha[d] been timely” sued.[18] In other words, the Court had to determine whether the party to be added after the expiration of the applicable statute of limitations was “tethered to another party against which claims were timely interposed,” and whether “that preexisting party” was “an active defendant at the time the relation-back doctrine [was] applied.”[19] The Court held that the claims against Eisenbach and Design were tethered to those against an existing party, though it did so for procedural reasons, such as under the law of the case doctrine:
Here, however, Eisenbach—the preexisting party—had been discontinued from the action by the plaintiffs, though under false or mistaken pretenses that were not discovered until later. Technically, therefore, when the plaintiffs sought leave to amend the complaint to add Eisenbach and Design as party defendants, the statute of limitations had already expired as to both of them; Eisenbach was no longer an existing party within the statute of limitations to which Design could be tethered. Further, for Eisenbach to be properly re-added to the action after the expiration of the statute of limitations, he would have to relate back to yet another party—a double relation-back—although no circumstances for his own relation-back are shown on this record.
***
Further, and most significantly, so much of the Supreme Court’s order as granted that branch of the plaintiffs’ unopposed motion which was for leave to amend the complaint to re-add Eisenbach as a defendant in the action, whether correct or not, has not been appealed by any party; the only issues that have been appealed pertain to whether Design should have been added as a defendant in the action under the relation-back doctrine and whether summary judgment had been improperly awarded to Mist and Presco. Therefore, this appeal is postured where Eisenbach, though technically untimely, was added to the action via an amended complaint which, absent opposition and an appeal of that issue, is now the law of the case. So postured, Design may be added as a defendant to the action, beyond the statute of limitations for Design, by virtue of the relation-back to Eisenbach who has again become an existing presence in the action in a manner that is both uncontested and the law of the case.[20]
The Court sought to make it clear that it was not creating new law with regard to the relation-back doctrine – i.e., modifying the three-pronged test when an untimely party is added to an existing action:
The result here, where relation-back is applied against one party by relating back the claims to another party that is itself untimely added, should not be construed as suggesting that the three-pronged test for the relation-back doctrine is modified. It is not. Nor does it suggest that relation-back can be applied when the party to whom a claim relates is not a timely, existing party in an action. Decisional authorities require that there be a preexisting party against whom there is a timely claim. The result here, while very unusual, is instead a product of its peculiar circumstances; namely, the absence of any opposition to Eisenbach being re-added as a party defendant after the statute of limitations had expired as to him which restored him as an existing party in the action, and as a consequence, the absence of any argument that Eisenbach’s renewed presence in the case was an error by the Supreme Court.[21]
Accordingly, the Court reversed the order insofar as reviewed, and granted that branch of Plaintiffs’ motion which was for leave to amend the complaint to add Design as a defendant on the basis of the relation-back doctrine.
____________________________
Jeffrey M. Haber is a partner and co-founder of Freiberger Haber LLP.
This article is for informational purposes and is not intended to be and should not be taken as legal advice.
[1] CPLR 3025(b); Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959 (1983).
[2] See, e.g., Watkins-Bey v. MTA Bus Co., 174 A.D.3d 553, 554 (2d Dept. 2019).
[3] See Schwartz v. Walter, 171 A.D.3d 969, 970 (2d Dept. 2019); Roco G.C. Corp. v. Bridge View Tower, LLC, 166 A.D.3d 1031, 1033 (2d Dept. 2019) (as corrected); Grant v. Brooklyn Ctr. for Rehabilitation & Residential Health Care, LLC, 153 A.D.3d 798 (2d Dept. 2017); Jenal v. Brown, 80 A.D.3d 727 (2d Dept. 2011); Ricca v. Valenti, 24 A.D.3d 647, 648 (2d Dept. 2005).
[4] See, e.g., Catnip, LLC v. Cammeby’s Mgt. Co., LLC, 170 A.D.3d 1103, 1106 (2d Dept. 2019); Myung Hwa Jang v. Mang, 164 A.D.3d 803, 804-805 (2d Dept. 2018); Marrone v. Miloscio, 145 A.D.3d 996, 999 (2d Dept. 2016); Rodriguez v. Paramount Dev. Assoc., LLC, 67 A.D.3d 767, 768 (2d Dept. 2009).
[5] See Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Stds. & Appeals, 5 N.Y.3d 452, 457 (2005); Ortega v. New York City Tr. Auth., 170 A.D.3d 872, 873 (2d Dept. 2019); Martin v. City of New York, 153 A.D.3d 693, 694 (2d Dept. 2017); Moezinia v. Ashkenazi, 136 A.D.3d 990, 992 (2d Dept. 2016).
[6] 87 N.Y.2d 173 (1995).
[7] Id. at 178-179; see also Wilson v. Rye Family Realty, LLC, 218 A.D.3d 836, 838 (2d Dept. 2023); Estate of Stengel v. Good Samaritan Hosp., 214 A.D.3d 954 (2d Dept. 2023); Sanders v. Guida, 213 A.D.3d 714, 715 (2d Dept. 2023); Marcotrigiano v. Dental Specialty Assoc., P.C., 209 A.D.3d 850, 851-852 (2d Dept. 2022); OneWest Bank N.A. v. Muller, 189 A.D.3d 853, 855 (2d Dept. 2020).
[8] Normally, the relation-back doctrine may only be applied when the party being added relates back to another party which has already been timely sued and which is a continuing defendant in the case.
[9] Slip Op. at *2.
[10] Id.
[11] Id.
[12] Unity of interest examines the jural relationship of the parties that are said to be united, and the nature of the claims asserted against them by the complainant. Matter of 130-10 Food Corp. v. New York State Div. of Human Rights, 166 A.D.3d 962, 965 (2d Dept. 2018); Kammerzell v. Clean Burn, Inc., 165 A.D.3d 768, 769 (2d Dept. 2018); Connell v. Hayden, 83 A.D.2d 30, 42-43 (2d Dept. 1981). Where one party is vicariously liable for the acts or omissions of another, their available defenses will be the same and the parties’ interests will be united. See Cedarwood Assoc., LLC v. County of Nassau, 211 A.D.3d 799, 800 (2d Dept. 2022); Chandler v. New York City Tr. Auth., 209 A.D.3d 825, 826 (2d Dept. 2022); Petruzzi v Purow, 180 A.D.3d 1083, 1085 (2d Dept. 2020); Weckbecker v. Skanska USA Civ. Northeast, Inc., 173 A.D.3d 936 (2d Dept. 2019); Connell, 83 A.D.2d at 45. Under the doctrine of respondeat superior, an employer will be vicariously liable for the torts of its employee committed within the scope of employment. See Judith M. v. Sisters of Charity Hosp., 93 N.Y.2d 932, 933 (1999); Fernandez v. Fernandez, 216 A.D.3d 743, 745 (2d Dept. 2023); Montalvo v. Episcopal Health Servs., Inc., 172 A.D.3d 1357, 1359 (2d Dept. 2019); Gadson v. City of New York, 156 A.D.3d 685, 686 (2d Dept. 2017).
[13] Slip Op. at *3.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id. (citing, among others, Liverpool v. Arverne Houses, 67 N.Y.2d 878, 879 (1986)).
[20] Slip Op. *3-*4.
[21] Id. at *4.
