Opinion
Index No. CV-716670-16/KI
06-29-2021
Action Potiential Chiropractic, PC AAO DIALLO, SOULEYMAN, Plaintiff, v. Grange Mutual Casualty Ins. Co., Defendant.
Attorney for Plaintiff: Oleg Rybak, Esq. The Rybak Firm, PLLC
Unpublished Opinion
Attorney for Plaintiff: Oleg Rybak, Esq. The Rybak Firm, PLLC
Ellen E. Edwards, J.
This action seeks to recover first-party no-fault benefits, assigned by Souleyman Diallo, for services rendered. Plaintiff moves to amend to add a new party, Knightbrook Insurance Company, to the action pursuant to CPLR 305(c), CPLR 2001, and CPLR 3025(b), and to remove Grange Mutual Casualty Ins. Co. as a defendant under claim number 14982012. Plaintiff claims that in reviewing the Summons and Complaint it noticed there was a clerical error, in that the name of the defendant was not properly printed. Plaintiff thus seeks leave to re-serve the Amended Summons and Complaint upon Knightbrook Ins. Co. No opposition papers to this motion were submitted by the defendant, Grange Mutual Casualty Ins. Co.
After oral argument, the Decision/Order on plaintiff's Motion to Amend is as follows:
The accident giving rise to this case occurred on May 5, 2012. Claims were allegedly submitted to the carrier on December 20, 2013. According to the court files and the plaintiff's motion, no answer was filed in response to the Summons and Complaint dated May 6, 2016, and filed May 9, 2016. The six-year statute of limitations applies to first-party no-fault claims which begins to run from the date the cause of action accrues, not from the date of the insurer's belated denial of claim form (DJS Med. Supplies, Inc. v. Clarendon Natl Ins. Co., 32 Misc.3d 129 (a) (App Term 2d, 11th & 13th Judicial Dists, 2011)). An amendment to add a party at this juncture falls clearly outside of the statute of limitations.
Plaintiff's counsel argues Knightbrook Ins. Co. will not suffer any prejudice should the court grant leave to amend. It will merely be called to defend against current claim amounts that remain unpaid and are overdue (Plaintiff Affirmation, Paragraph 10). Plaintiff's counsel maintains that failure to permit an amendment of the Summons and Complaint would result in additional time, effort, and costs, to all parties, as well as unnecessary waste of judicial resources, as plaintiff would be forced to discontinue the instant action and commence a second lawsuit (id.). Plaintiff's counsel further asserts, in the discontinuance of this action, there would be no prejudice to Grange Mutual Ins. Co., because no orders have been issued by the Court nor have the parties engaged in substantial litigation (Plaintiff Affirmation, Paragraphs 11, 16). Finally, plaintiff claims this application is not an attempt to circumvent an adverse ruling or otherwise derive underhanded advantage through discontinuing the action against Grange (Plaintiff Affirmation, Paragraph 16).
Relief pursuant to CPLR 305 (c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed, in the original process, and that the correct defendant would not be prejudiced by the granting of the amendment (Nossov v. Hunter Mountain, 185 A.D.3d 948 -949 (2nd Dept, 2020). Though "CPLR 305 (c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served" (Tokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d 662, 662 (2nd Dept. 2015); Smith v. Garo Enters., Inc., 60 A.D.3d 751,752 (2d Dept. 2009); see also Nossov v Hunter Mountain, 185 A.D.3d 948, 949 (2nd Dept. 2020). Under CPLR 305 (c), "an amendment to correct a misnomer will be permitted 'if the court has acquired jurisdiction over the intended but misnamed defendant provided that... the intended but misnamed defendant was fairly apprised that [it] was the party the action was intended to affect... [and] would not be prejudiced' by allowing the amendment" (Honeyman v. Curiosity Works, Inc., 120 A.D3d 1302, (2d Dept. 2014) [internal citations omitted]).
CPLR 2001 allows a party to correct mistakes, omissions, defects, or irregularities, at any stage of an action. Courts freely grant leave to amend a pleading under CPLR 3025 (b), unless the opposing party can show that the delay causes prejudice or surprise (O'Halloran v. Metropolitan Transp. Auth., 154 A.D.3d 83, 86 (1st Dept 2017)). If the statute of limitations has expired, a plaintiff may add a claim if it relates back to the incident alleged in the complaint (id.). However, "allowing the relation back of amendments adding new defendants implicates more seriously due process policy concerns than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court" (Buran v. Coupal, 87 N.Y.2d 173, 178 [1995]).
Here, there is no indication Grange was served with the original summons and complaint or that Knightbrook Ins. Co. was served with the current motion or any other documents related to this incident. To bring a claim for no-fault benefits, statutory prerequisites must be met. The plaintiff must show claim forms were timely and properly sent to the carrier and that those claims were not paid or properly denied within the statutory period. In the proposed amended pleading, plaintiff merely switches the names of the party and retains the same claim number with the same allegations of timely mailing, albeit to a different address. Plaintiff fails to demonstrate notice to, nor that the statutory prerequisites have been met with the new party. By now moving to add a new party, the plaintiff is requesting this court extend the statute of limitations and resurrect a claim that is otherwise time barred.
According to CPLR 203 (f), "[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." The relation-back doctrine "enables a plaintiff to correct a pleading error-by adding either a new claim or a new party-after the statutory limitations period has expired," and gives courts the "sound judicial discretion to identify cases that justify relaxation of limitations strictures... to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff's adversary" (Buran v. Coupal, 87 N.Y.2d 173, 177-178, [citation and internal quotation marks omitted]; see O'Halloran v. Metropolitan Transp. Auth., 154 A.D.3d 83, 86); Catnap, LLC v. Cammeby's Mgmt. Co., LLC, 170 A.D.3d 1103, 1106 (2019)).
A court could entertain the amendment of the pleading if plaintiff shows that (1) the claims arise out of the same occurrence, (2) the proposed new defendant is "united in interest" with the original defendant and, due to this relationship, the proposed new party is chargeable with notice of the of the action such that there is no prejudice, and (3) the proposed new defendant, Knightbrook Ins. Co., "knew or should have known that, but for an excusable mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well." (id. [internal quotation marks and citation omitted]; see CPLR 203 [c]).
In arguing there would be no prejudice to Grange Mutual, the plaintiff misdirects the focus of the prejudice analysis. The dictates of due process require the court to consider prejudice to the new defendant, Knightbrook, where a belated amendment is requested. Additionally, where, as here, the statute of limitations has expired, plaintiff has the burden of showing that the relation-back doctrine applies (Garcia v. New York-Presbyt. Hosp., 114 A.D.3d 615, 615 [1st Dept 2014]). Plaintiff has not offered any arguments to satisfy this three-part test for the application of the relation-back doctrine. Finally, "[t]he moving party... has the added burden of establishing that diligent efforts were made to ascertain the unknown party's identity prior to the expiration of the statute of limitations" (Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 35 [2d Dept 2009]). In this case, plaintiff has not provided the court with a factual basis to engage in an analysis and has failed to meet its burden. Given these failures, the court does not reach the question of prejudice to the new party.
Accordingly, the Motion to Amend is denied. This constitutes the decision and order of the court.