Opinion
375 CA 15-00795.
04-29-2016
Michael G. MITCHELL, Plaintiff, v. Calin OLAR, Cold Spring Construction Company, Defendants–Respondents, Anthony M. Crisafulli, Defendant–Appellant, et al., Defendant.
Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for Defendant–Appellant. Burden, Gulisano & Hansen, LLC, Buffalo (Sarah Hansen of Counsel), for Defendant–Respondent Calin Olar. Cartafalsa, Slattery, Turpin & Lenoff, Buffalo (Brian Minehan of Counsel), for Defendant–Respondent Cold Spring Construction Company.
Law Office of Keith D. Miller, Liverpool (Keith D. Miller of Counsel), for Defendant–Appellant.
Burden, Gulisano & Hansen, LLC, Buffalo (Sarah Hansen of Counsel), for Defendant–Respondent Calin Olar.
Cartafalsa, Slattery, Turpin & Lenoff, Buffalo (Brian Minehan of Counsel), for Defendant–Respondent Cold Spring Construction Company.
PRESENT: CENTRA, J.P., CARNI, DeJOSEPH, CURRAN, AND SCUDDER, JJ.
Opinion
MEMORANDUM: Plaintiff commenced this action seeking damages for personal injuries he sustained in a motor vehicle accident that occurred on October 6, 2010. In his complaint, plaintiff alleged that the accident occurred near a construction site where work was being performed by defendant Cold Spring Construction Company (Cold Spring). Plaintiff further alleged that a Cold Spring employee was directing traffic at the construction site when a vehicle owned and operated by defendant Calin Olar collided with a vehicle owned by defendant Anthony M. Crisafulli, which then collided with a vehicle operated by plaintiff. Plaintiff alleged that his injuries were caused by, inter alia, the negligence of Cold Spring, Olar, and Crisafulli. Crisafulli's answer included a cross claim against Cold Spring and Olar seeking to recover property damages for the destruction of Crisafulli's vehicle. Supreme Court granted the motions of Cold Spring and Olar seeking to dismiss the cross claim on the ground that the statute of limitations had expired.
We agree with Crisafulli that the court erred in granting the motions of Cold Spring and Olar. Plaintiff commenced the underlying action on September 20, 2013 by filing the complaint (see CPLR 203[c] ), which was before the three-year statute of limitations for Crisafulli's property damage claim expired on October 6, 2013 (see CPLR 214[4] ). CPLR 203(d) provides that “[a] defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed.” That section applies to cross claims as well as to counterclaims (see Long v. Sowande, 27 A.D.3d 247, 248, 810 N.Y.S.2d 195 ). Thus, although Crisafulli did not answer the complaint until after the limitations period had expired, we conclude that “[t]he cross claim was not barred by the [s]tatute of [l]imitations as that claim was viable at the time the underlying action was commenced” (Sievert v. Morlef Holding Co., 220 A.D.2d 403, 404, 631 N.Y.S.2d 774 ; see CPLR 203 [d]; Colichio v. Bailey, 77 A.D.2d 694, 694, 429 N.Y.S.2d 504 ). Moreover, because Crisafulli's cross claim was viable at the time the underlying action was commenced, there is no need to consider whether the cross claim arose out of the same transaction or occurrence as the claim asserted in the complaint (see CPLR 203[d] ; see generally Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950 ; Colichio, 77 A.D.2d at 694, 429 N.Y.S.2d 504 ). Indeed, the cross claim is “recoverable in full ... regardless of whether it is related to the transaction or occurrence underlying plaintiff's claim” (Vincent C. Alexander, Supp Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C203:9, 2016 Pocket Part at 79; cf. Harrington v. Gage, 43 A.D.3d 1393, 1394–1395, 843 N.Y.S.2d 745, lv. dismissed 10 N.Y.3d 789, 857 N.Y.S.2d 23, 886 N.E.2d 786, lv. denied 11 N.Y.3d 711, 872 N.Y.S.2d 73, 900 N.E.2d 556 ; Town of Amherst v. County of Erie, 247 A.D.2d 869, 869–870, 668 N.Y.S.2d 848 ).
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the motions of defendants Calin Olar and Cold Spring Construction Company are denied, and the cross claim of defendant Anthony M. Crisafulli is reinstated.