Opinion
157106/16
06-03-2019
Marc SEELER, Plaintiff, v. AMA CONSULTING ENGINEERS, P.C., AMA Development Infrastructure, LLC, and "XYZ Corporation", Defendants.
Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York City (Michael J. Kesselman and Jamie Packer of counsel) for plaintiff. Gambeski & Frum, New York City (Donald L. Frum and Won Sohng of counsel), for defendant AMA Development Infrastructure, LLC.
Nicoletti Gonson Spinner Ryan Gulino Pinter LLP, New York City (Michael J. Kesselman and Jamie Packer of counsel) for plaintiff.
Gambeski & Frum, New York City (Donald L. Frum and Won Sohng of counsel), for defendant AMA Development Infrastructure, LLC.
Robert R. Reed, J.
This is an action for personal injuries brought by plaintiff Marc Seeler, an electrician, for injuries that he allegedly sustained on September 5, 2013 at the Vanguard Ambulatory Surgery Center located at 113 Essex Street, Maywood, New Jersey (hereinafter, the premises). Defendant AMA Development Infrastructure, LLC (AMADI) moves for an order: (1) pursuant to CPLR 3211 (a) (5), dismissing the amended complaint as against it as time-barred; (2) pursuant to CPLR 3211 (a) (8), dismissing the amended complaint on the ground that plaintiff has failed to obtain personal jurisdiction over AMADI within the applicable statute of limitations; and (3) pursuant to CPLR 3212, dismissing plaintiff's claims alleging violations of the New York State Labor Law.
BACKGROUND
Plaintiff commenced the instant action on August 24, 2016 by filing a summons and verified complaint (N.Y. St. Cts. Electronic Filing [NYSCEF] Doc No. 1). The verified complaint alleges that plaintiff was employed by nonparty Coli Electric Contractors, Inc. as an electrician on the date of his accident (id. , ¶ 33). Plaintiff named defendant AMA Consulting Engineers, P.C. (AMACE), "ABC Corporation," and "XYZ Corporation" as defendants (id. , ¶¶ 1-6). Plaintiff alleges that AMACE was the general contractor on the project, and that the Borough of Maywood Building Department issued Permit No. 12-00285 to AMACE for addition/renovation work on the subject project (id. , ¶¶ 2, 3). Plaintiff also alleges that ABC Corporation and XYZ Corporation manufactured, designed, marketed, sold, distributed, provided and/or supplied defective electrical wiring and/or circuits (id. , ¶¶ 16, 18). Plaintiff alleges causes of action for common-law negligence and for violations of New York State Labor Law §§ 200, 240, and 241 (6) (id. , ¶ 41).
Previously, AMACE moved, pursuant to CPLR 3211 (a) (1) and (7), to dismiss the complaint on the grounds that it was an engineering firm and did not perform general contracting services on the project (NYSCEF Doc No. 32). In support of its motion, AMACE submitted an affidavit dated September 29, 2016 from Howard Cohen (Cohen), AMADI's managing partner, in which he averred that AMADI, not AMACE, was the general contractor on the project (NYSCEF Doc No. 33, Cohen aff, ¶¶ 2-5). AMACE also provided an AIA standard form agreement indicating that, on May 28, 2013, Vanguard Surgical Center, LLC retained AMADI as a contractor to construct an ambulatory surgery center on the premises (NYSCEF Doc No. 34).
On October 3, 2016, plaintiff filed an amended summons and verified complaint, naming AMADI as a defendant (NYSCEF Doc No. 35). In the amended complaint, plaintiff alleges that AMADI was the general contractor, and that it was performing the addition/renovation work at the premises pursuant to Permit No. 12-00285 (id. , ¶¶ 16, 17).
By decision and order dated March 23, 2017, the court dismissed AMACE from the action on the record (NYSCEF Doc No. 41). In dismissing the action against AMACE, the court noted that the contract clearly identified AMADI, not AMACE, as the general contractor, utterly refuting the allegations of the complaint as against AMACE (id. at 12).
Arguments
AMADI now moves to dismiss the amended complaint, arguing that plaintiff filed the amended complaint against AMADI beyond the three-year statute of limitations. In addition, AMADI contends that plaintiff cannot rely on the "relation back" doctrine because AMADI and AMACE are not "united in interest," and because plaintiff's failure to name AMADI as a defendant cannot be considered an excusable mistake.
To support its position, AMADI offers another affidavit from Cohen, in which he states that, from 2009 through 2015, he was the managing partner of AMADI (NYSCEF Doc No. 30, Cohen aff, ¶ 1). According to Cohen, during this period, AMADI was a New Jersey limited liability company with its principal place of business in Madison, New Jersey (id. , ¶ 2). AMADI performed construction services and served as a general contractor on commercial real estate projects (id. ). Cohen states that AMADI was dissolved in April 2011, and provides a certificate of dissolution and termination dated June 14, 2015 indicating that the entity had wound up all of its affairs and had been terminated as of that date (id. ; NYSCEF Doc No. 46). Cohen states that AMADI was always a separate entity from AMACE; the companies were not related or subsidiaries of one another (NYSCEF Doc No. 30, Cohen aff, ¶ 9). Although AMACE and AMADI shared offices in the same building in New York City from 2013 through 2015, they never shared employees, and maintained separate tax identification numbers and payrolls (id. ). Cohen states that he was never a principal or owner of AMACE (id. ). Moreover, there were no contracts between AMADI and AMACE for the Vanguard Surgical Center project, since AMACE was not involved in the project (id. , ¶ 6).
Cohen also states that, from 2004 through 2011, he was also the managing partner of AMA Development, LLC, a New York limited liability company (NYSCEF Doc No. 30, Cohen aff, ¶ 3). AMA Development, LLC also performed general contracting services (id. ). AMA Development, LLC dissolved in April 2011 (id. ; see also NYSCEF Doc No. 47).
In addition, AMADI contends that it was never properly served with the amended complaint in a timely manner. According to the affidavit of service provided by plaintiff, AMADI was purportedly served on October 20, 2016, more than three years after the expiration of the statute of limitations. While plaintiff attempted to serve AMADI on October 20, 2016 by serving Catherine Metzler (Metzler), as administrator for AMADI, at 250 West 39th Street, 9th Floor, New York, New York, AMADI had been dissolved for over a year, and never maintained offices at that location (id. , ¶ 10; NYSCEF Doc No. 36). Additionally, Metzler was never an employee of AMADI, and was not authorized to accept service on behalf of AMADI (id. ). Cohen further states that "AMADI was not served with plaintiff's Amended Summons and Complaint until November 4, 2016, more than 3 years after plaintiff's accident when [he] was served with the papers" (id. , ¶ 11).
Finally, AMADI argues that the New York State Labor Law does not apply to plaintiff's out-of-state construction site accident.
In opposition, plaintiff concedes that New Jersey substantive law applies to this action (NYSCEF Doc No. 53, Kesselman affirmation in opposition, ¶ 10). However, plaintiff contends the initial complaint was timely amended and then was served on AMADI within 120 days of the filing of the initial complaint. According to plaintiff, he properly amended the complaint to replace ABC Corporation with AMADI without leave of court and as of right pursuant to CPLR 3025 (a). Plaintiff further contends that AMADI was properly named as a fictitious entity under CPLR 1024 and then was timely served within 120 days of the filing of the initial complaint. Plaintiff maintains that he exercised due diligence in order to avail himself of CPLR 1024.
As support for his argument, plaintiff submits an affidavit from his prior counsel, Anthony D. Martine, Esq. (Martine), indicating that his firm hired two records search firms to determine the proper parties after plaintiff retained him (NYSCEF Doc No. 54, Martine aff, ¶ 5). Plaintiff's prior counsel learned that the general contractor's name began with "AMA" in all capital letters (id. , ¶ 6). Martine discovered that there were multiple similarly-named "AMA" entities throughout New York and New Jersey, many of which had been dissolved or discontinued at different times (id. , ¶ 7). After obtaining the permits for the construction work, Martine believed that the general contractor was an entity known as "AMA Development," with an office at 400 Interspace Parkway, Building C, 2nd Floor, Parsippany, New Jersey 07054 (id. , ¶ 8). Therefore, Martine filed an action in Bergen County Superior Court against, among others, AMA Development, ABC Corporation, and XYZ Corporation (id. , ¶ 9). However, the New Jersey court sua sponte dismissed that action without prejudice in February 2016 (id. , ¶ 10). At that time, plaintiff had moved to New York, so Martine recommenced the action in New York (id. ).
According to Martine, he then conducted research with the New York State Division of Corporations to identify the general contractor on the project (id. , ¶¶ 12, 14). There were only two "AMA Development" entities ever listed as having been organized or authorized to do business in New York: (1) AMA Development N.V.; and (2) AMA Development LLC (id. , ¶ 12). However, both entities had been dissolved before the accident (id. ). Martine discovered four other possibilities: (1) AMA Consulting Group, LLC; (2) AMA Consulting, Inc.; (3) AMA Consulting Unlimited Inc.; and (4) AMACE (id. , ¶ 14). AMACE had the same principal, Arthur Metzler, and the same address, 250 West 39th Street, 9th Floor, as AMA Development, LLC (id. , ¶ 15; NYSCEF Doc No. 53). Therefore, Martine named AMACE as a defendant in the recommenced action in New York, in addition to ABC Corporation and XYZ Corporation (id. , ¶¶ 16, 17). Immediately after learning that AMADI was the proper party, Martine filed the amended summons and complaint, replacing ABC Corporation with AMADI (id. , ¶ 18).
Further, plaintiff contends that the amended complaint is timely because all claims against AMADI relate back to the claims against AMACE. In this regard, plaintiff maintains that he is not required to demonstrate an excusable mistake. As argued by plaintiff, AMADI knew or should have known that the action would have been brought against it, but for the mistake of plaintiff's prior counsel. Cohen's initial affidavit, submitted in support of AMACE's motion to dismiss, makes clear that he knew that plaintiff was trying to sue the general contractor. Further, AMADI cannot claim any prejudice.
Plaintiff also maintains that the court has personal jurisdiction over AMADI because it was properly served with the amended summons and complaint within the time period allowed by CPLR 306-b. According to plaintiff, Cohen admits that service on AMADI was proper.
In reply, AMADI contends that plaintiff cannot rely on the relation-back doctrine because AMADI and AMACE were not united in interest. AMADI did not know that it would be named a party until after the statute of limitations had expired. Additionally, AMADI argues that plaintiff cannot rely on CPLR 1024, given that he failed to make a diligent effort to identify the correct party prior to the expiration of the statute of limitations. Furthermore, plaintiff's allegations against ABC Corporation are different from the allegations against AMADI in the amended complaint.
DISCUSSION
" ‘On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. In considering the motion, a court must take the allegations in the complaint as true and resolve all inferences in favor of the plaintiff’ "
( Benn v. Benn , 82 AD3d 548, 548 [1st Dept. 2011], quoting Island ADC, Inc. v. Baldassano Architectural Group, P.C. , 49 AD3d 815, 816 [2d Dept. 2008] ). Once the defendant meets its prima facie burden, "[t]he burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period" ( Papa v. Fairfield on the Green , 123 AD3d 990, 990 [2d Dept. 2014] ).
An action to recover for personal injuries must be commenced within three years of its accrual (see CPLR 214 [5] ). " ‘As a rule, the date of injury is the benchmark for determining the accrual of a cause of action’ " ( Torres v. Greyhound Bus Lines, Inc. , 48 AD3d 1264, 1265 [4th Dept. 2008], quoting Blanco v. American Tel. & Tel. Co. , 90 NY2d 757, 767 [1997], rearg. denied 91 NY2d 922 [1998] ).
Plaintiff alleges that he was injured on September 5, 2013 (NYSCEF Doc No. 35, complaint ¶ 41). The original complaint did not include AMADI as a defendant (NYSCEF Doc No. 31). Moreover, plaintiff did not add AMADI as a defendant until October 3, 2016, more than three years after September 5, 2013 (NYSCEF Doc No. 35). Thus, AMADI has established prima facie that the time for plaintiff to sue AMADI has expired (see Markov v. Stack's LLC [Delaware] , 161 AD3d 453, 453 [1st Dept. 2018] ).
Plaintiff relies on CPLR 1024 in arguing that his claims against AMADI are timely. CPLR 1024 provides as follows:
"A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly."
"In order to employ the procedural mechanism made available by CPLR 1024, the plaintiff must show that he [or she] made genuine effort[s] to ascertain the defendants' identities prior to the running of the Statute of Limitations" ( Luckern v. Lyonsdale Energy Ltd. Partnership , 229 AD2d 249, 253 [4th Dept. 1997] [internal quotation marks and citation omitted]; accord Opiela v. May Indus. Corp. , 10 AD3d 340, 341 [1st Dept. 2004] ; Tucker v. Lorieo , 291 AD2d 261, 261 [1st Dept.] ). "Any failure to exercise due diligence to ascertain the [defendant's] name subjects the complaint to dismissal as to that party" ( Bumpus v. New York City Tr. Auth. , 66 AD3d 26, 30 [2d Dept. 2009] ). In addition, "a summons served in a ‘John Doe’ form is jurisdictionally sufficient only if the actual defendants are adequately described and would have known, from the description in the complaint, that they were the intended defendants" ( Lebowitz v. Fieldston Travel Bur. , 181 AD2d 481, 482 [1st Dept. 1992] [internal quotation marks and citation omitted]; see also City of Mount Vernon v. Best Dev. Co. , 268 N.Y. 327, 331 [1935], rearg. denied 268 N.Y. 708 [1935] ["(t)he essential requirement to bring a defendant into court is that the defendant be named or described in such form as will properly identify the defendant and give notice of opportunity to defend"] ).
The complaint naming ABC Corporation as a defendant states that AMACE, not AMADI, was the general contractor, and that ABC Corporation manufactured, designed, marketed, and sold defective electrical wiring and/or circuits (NYSCEF Doc No. 31, complaint ¶¶ 2, 15, 17). Nevertheless, in the amended complaint, plaintiff alleges that AMADI was the general contractor, and that AMADI was performing the work pursuant to a permit issued by the Maywood Building Department (NYSCEF Doc No. 35, amended complaint, ¶¶ 16, 17). Thus, the allegations against ABC Corporation did not fairly apprise AMADI that it was plaintiff's intended target (see Goldberg v. Boatmax://, Inc. , 41 AD3d 255, 256 [1st Dept. 2007] ["The summons and complaint served on one of the intended defendants did not satisfy CPLR 1024 since its allegations did not fairly apprise that individual that he was their target"]; Olmsted v. Pizza Hut of Am., Inc. , 28 AD3d 855, 856 [3d Dept. 2006] [complaint did not sufficiently identify electrical contractor as the party that maintained, rather than installed, a restaurant's electrical system]; Opont v. Duclair Realty Corp. , 190 AD2d 781, 781-782 [2d Dept. 1993] [complaint naming "XYZ Corporation" as the manufacturer of a boiler did not adequately describe the corporation as the intended defendant where plaintiff's amended complaint identified a different entity as the manufacturer of the boiler and corporation merely manufactured some component parts used in the boilers]; cf. Rogers v. Dunkirk Aviation Sales & Serv., Inc. , 31 AD3d 1119, 1120 [4th Dept. 2006] [manufacturer and its successor-in-interest were "adequately described in the amended complaint such that, from the description in the complaint, they would have known that they were intended defendants"] [internal quotation marks and citation omitted] ). Consequently, the inadequate description renders the action jurisdictionally defective (see Markov , 161 AD3d at 453 ).
Plaintiff's reliance on the relation-back doctrine is also unavailing.
"The relation-back doctrine allows a party to be added to an action after the expiration of the statute of limitations, and the claim is deemed timely interposed, if (1) the claim arises out of the same conduct, transaction, or occurrence, (2) the additional party is united in interest with the original party, and (3) the additional party knew or should have known that but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against the additional party as well"
( Bumpus , 66 AD3d at 35, citing Buran v. Coupal , 87 NY2d 173, 178 [1995] ). The "linchpin" of the relation-back doctrine is "notice to the defendant within the applicable limitations period" ( Buran , 87 NY2d at 180 ). However, "[t]he Court of Appeals has recognized that a more relaxed standard applies where a plaintiff seeks to use the relation-back doctrine by adding a new claim against a defendant who is already a party to litigation as opposed to adding a new defendant " ( O'Halloran v. Metropolitan Transp. Auth. , 154 AD3d 83, 86 [1st Dept. 2017] [emphasis added] ).
The "classic test" for determining unity of interest is "that if the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other" ( Brunero v. City of N.Y. Dept. of Parks & Recreation , 121 AD3d 624, 625 [1st Dept. 2014] [internal quotation marks and citation omitted] ). "A unity of interest ... will be found where there is some relationship between the parties giving rise to the vicarious liability of one for the conduct of the other" ( Vanderberg v. Brodman , 231 AD2d 146, 147 [1st Dept. 1997] ). Joint tortfeasors are typically not united in interest, since they typically have different defenses (see LeBlanc v. Skinner , 103 AD3d 202, 210 [2d Dept. 2012] ).
Here, plaintiff has not established that AMACE and AMADI are united in interest. Plaintiff has not demonstrated that a judgment against one entity would affect the other. He has not shown that there is a relationship between these entities that would create vicarious liability. Even if AMADI and AMACE had common owners or management, as asserted by plaintiff, this would be insufficient to demonstrate unity of interest (see Mercer v. 203 E. 72nd St. Corp. , 300 AD2d 105, 106 [1st Dept. 2002] [the fact that "the proposed defendant and a named defendant had common shareholders, officers and a comptroller was insufficient to establish that the two entities were united in interest"] ). AMADI submits an affidavit from its former managing partner indicating that that the entities are not related, and that, although the two companies shared office space, they never shared employees (NYSCEF Doc No. 30, Cohen aff, ¶ 9). The companies had separate payrolls and tax identification numbers (id. ). Moreover, there were no agreements between the two entities that would create vicarious liability for the other's conduct with respect to the project (id. , ¶¶ 5, 6).
Plaintiff relies on New York State Division of Corporations printouts and Cohen's affidavit. However, Cohen does not state that the two entities have common management (NYSCEF Doc No. 30, Cohen aff, ¶ 9). Moreover, the New York State Division of Corporations printouts refer to AMA Development, LLC, not AMADI (NYSCEF Doc No. 53).
Although plaintiff relies on Schroeder v. Good Samaritan Hosp. (80 AD3d 744 [2d Dept. 2011] ), the court finds this case to be distinguishable. There, the plaintiff timely filed a summons and complaint but did not serve it on the defendants ( id. at 745 ). The Court held that the plaintiff was not required to seek leave to amend the complaint, and that the trial court had personal jurisdiction over the defendants, where the defendants were served with substantively similar amended pleadings during the 120-day period when service of the original pleadings was required under CPLR 306-b ( id. at 746 ). Here, in contrast, plaintiff did not timely commence the action against AMADI. Moreover, Schroeder did not involve "John Doe summonses" (see Katzman v. Does , 46 Misc. 3d 1212 [A], 2015 N.Y. Slip Op. 50045 [U], *2 [Sup. Ct., Queens County 2015] ).
Therefore, plaintiff's claims against AMADI must be dismissed as time-barred.
In light of the above, the court need not reach AMADI's remaining contentions.
CONCLUSION
Accordingly, it is
ORDERED that the motion (sequence number 002) of defendant AMA Development Infrastructure, LLC to dismiss the amended complaint herein is granted and the amended complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further
ORDERED that the action is severed and continued against the remaining defendant; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).