Opinion
13902/00.
Decided April 13, 2006.
SMITH MAZURE DIRECTOR WILKINS, YOUNG YAGERMAN, P.C., Attorney for Third-Party Defendant, Key Bank USA, N.A., New York, NY.
INGO KUHFAHL, ESQ., MEAD, HECHT, CONKLIN GALLAGHER, Attorneys for Defendants/Third-Party Plaintiffs, Mamaroneck, NY.
BURKE, LIPTON, PULEO McCARTHY, ESQS., Attorneys for Plaintiffs, White Plains, NY.
The following papers numbered 1 to 20 were read on this motion by defendant/third-party defendant Key Bank for leave to reargue those branches of this Court's Order dated December 1, 2005 and entered December 12, 2005, which (1) denied that branch of Key Bank's motion for an order pursuant to CPLR 3211(a)(5) dismissing plaintiffs' Supplemental Summons and Amended Verified Complaint as barred by the Statute of Limitations, (2) failed to address that portion of Key Bank's motion seeking summary judgment in favor of Key Bank and against plaintiffs, (3) failed to address that branch of Key Bank's motion seeking summary judgment in favor of Key Bank and against Nancy and Iyad Annabi and Westchester Family Medical Practice on its cross claims, and (4) failed to address that branch of Key Bank's motion seeking an order severing the third-party action.
The Sur-Reply Affirmation of Ingo Kuhfalhl, Esq. dated March 16, 2006 has not been considered by the Court insofar as it constitutes an improper sur-reply. Similarly any arguments raised by Key Bank for the first time in its reply papers have not been considered by the Court.
Order to Show Cause — Affirmations 1-3
Answering Affirmations 18-19
Replying Affirmation 20
Exhibits 4-17
Upon the foregoing papers, it is ordered that the application is decided as follows:
Those branches of the instant motion seeking leave to reargue those branches of the prior motion seeking summary judgment are denied. With respect to those branches of the prior motion, Key Bank has failed to establish that this Court overlooked any relevant facts or misapplied any controlling principle of law in reaching its prior decision ( Foley v Roche, 68 AD2d 558). Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted ( Pahl Equip. Corp. v Kassis, 182 AD2d 22, lv denied, lv dismissed 80 NY2d 1005; Foley v Roche, supra). Contrary to Key Bank's contention, its prior motion, as limited by the Affirmation in Support of Thomas G. Seccia, Jr. dated July 13, 2005, only sought summary judgment dismissing the third-party complaint and in Key Bank's favor on its cross claim against Nancy and Iyad Annabi. Neither the Notice of Motion nor the Affirmation in Support sought summary judgment "against plaintiffs" or in Key Bank's favor on its cross claim against Westchester Family Medical Practice. Moreover, the Court properly determined that it need not reach that branch of Key Bank's motion seeking summary judgment on it cross claim against defendants Annabi for indemnification insofar as such relief was premature since a triable issue of fact exists as to defendants Annabi's alleged negligence ( County of Orange v Hartford Acc. Indemn. Corp., 226 AD2d 578; Farduchi v Untied Artists Theatre Circuit , 23 AD3d 613).
That branch of the instant motion seeking leave to reargue that branch of the prior motion pursuant to CPLR 3211(a)(5) seeking dismissal of the amended complaint as barred by the Statute of Limitations is granted, and, upon reargument, the Court adheres to its original determination denying that branch of the motion. Plaintiffs timely served the amended complaint, by right, naming Key Bank as a direct defendant pursuant to CPLR 1009 and the "relation back doctrine" codified in CPLR 203(b) and (f). The amended complaint satisfies the relation back doctrine insofar as it alleges claims based upon the same accident alleged in the original complaint, Key Bank was united in interest with the original defendants, Nancy and Iyad Annabi ( Poulard v Papamihlopoulos, 254 AD2d 266), and Key Bank knew or should have known that, but for a mistake by plaintiffs as to the identity of the proper parties, the action would have been brought against it as well ( Buran v Coupal, 87 NY2d 173). Notably, Key Bank does not contradict plaintiffs' contention that, within weeks of the accident, it received a substantial insurance check for damage to the subject vehicle. Therefore, Key Bank was on notice that the subject vehicle had been involved in an accident ( see De Sanna v Rockefeller Center , 9 AD3d 596, 599; cf Williams v Majewski, 291 AD2d 816 [defendant owners of motor vehicle had no actual notice of accident within limitations period]). Key Bank's reliance upon Shapiro v Schoninger ( 122 AD2d 38) for its proposition that actual notice from a third-party is inadequate to satisfy the relation back doctrine is misplaced. In Shapiro, the Court held that the relation back doctrine was inapplicable because the original pleading did not give notice of the transaction and occurrence alleged in the amended pleading. In the present action, the original complaint and the amended complaint allege the same occurrence, namely the motor vehicle accident. While Key Bank correctly contends that plaintiffs could have ascertained its identity as the title owner of the subject vehicle through a title search, plaintiffs only need demonstrate they made a mistake, not an excusable mistake, in failing to initially identify Key Bank ( see Buran v Coupal, 87 NY2d 173, 178-179).
That branch of the motion seeking leave to reargue that branch of the prior motion seeking an order pursuant to CPLR 603 severing the third-party action is granted and, upon reargument, the Court adheres to its original determination denying that branch of the motion. Key Bank failed to show prejudice sufficient to mandate severance. The Court notes that the action is not currently on the trial calendar, plaintiffs withdrew their Note of Issue and Key Bank has been given the opportunity to complete discovery.