Opinion
624395/2019
12-23-2020
Rhonda SOMMER as Executor of the Estate of Helen Adelson, deceased, and Monica Reiner as Executor of the Estate of Isidore Adelson, deceased, Plaintiff(s), v. SIDDIQUI ENGINEERING P.C., Defendant(s).
PLAINTIFFS' ATTORNEY: GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM, HERSHENHORN, STEIGMAN & MACKAUF, 80 Pine Street, 34th Floor, New York, New York 10005 DEFENDANT'S' ATTORNEY:L'ABBATE BALKAN, COLAVITA & CONTINI, LLP, 1001 Franklin Avenue, Garden City, New York 11530
PLAINTIFFS' ATTORNEY: GAIR, GAIR, CONASON, RUBINOWITZ, BLOOM, HERSHENHORN, STEIGMAN & MACKAUF, 80 Pine Street, 34th Floor, New York, New York 10005
DEFENDANT'S' ATTORNEY:L'ABBATE BALKAN, COLAVITA & CONTINI, LLP, 1001 Franklin Avenue, Garden City, New York 11530
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendant dated February 7, 2020 and supporting papers; (2) Affirmation In Opposition by plaintiffs dated June 29, 2020 and supporting papers; and (3) Reply Affirmation by defendant dated July 22, 2020 and supporting papers it is
ORDERED that defendant's motion to dismiss the complaint herein pursuant to CPLR 3211 is DENIED .
This is one of a number of actions involving a motor vehicle accident that occurred on August 21, 2016 on the Long Island Expressway-Interstate 495 between exits 68 and 69, approximately two miles east of the William Floyd Parkway. The complaint in this action alleges, inter alia , that a vehicle owned by Ivonne Luque and operated by Carmelo Pinales (the "Pinales vehicle") came into contact with asphalt-edged metal plates, placed in the roadway in connection with certain road work in which Siddiqui allegedly was involved, resulting in Pinales losing control of the vehicle, which then left the roadway, crossed the divider and came into contact with a vehicle owned and operated by Marvin Tenzer (the "Tenzer vehicle"), resulting in serious injuries to a passenger in the Pinales vehicle and the deaths of other individuals, including plaintiffs' decedents, Isidore Adelson and Helen Adelson, rear passengers in the Tenzer vehicle, who died, respectively, on August 21 and 22, 2016. This action was commenced by the plaintiffs, the Executrices, respectively, of the estates Isidore and Helen Adelson, by the filing of the summons and verified complaint on December 16, 2019, which were served upon the defendant, Siddiqui Engineering, P.C. ("Siddiqui"), on January 21, 2020. Siddiqui now moves to dismiss the action, pursuant to CPLR 3211[a][5], on the grounds that it was brought beyond the time permitted by the applicable statutes of limitation.
The action alleges claims for personal injuries sustained by and the wrongful deaths of plaintiffs' decedents as a result of defendant's alleged negligence, carelessness and recklessness in performing supervision, inspection, construction, signage and maintenance involving the asphalt-edged metal plates that, plaintiffs claim, caused the Pinales vehicle to go out of control and contributed to the sequence of events that led to Mr. and Mrs. Adelson's injuries and death. A claim for personal injuries must be commenced within three years of the time the cause of action accrues (see CPLR 214[5] and 203 [[a] ), or, if later, within one year after the injured person's death if the person dies before the expiration of the statute of limitations and the cause of action survives (see CPLR 210[a] ). A claim for wrongful death must be brought within two years of the decedent's death (see EPTL § 5-4.1 ). Thus, absent some extension or tolling of the three-year statute of limitations, any action for personal injuries sustained by plaintiffs' decedents was to have been commenced by August 21, 2019, and any action for their wrongful deaths by August 21, 2018, and August 22, 2018, respectively. Defendant contends that inasmuch as the current action was not commenced until December 16, 2019, when the summons and complaint were filed, the entire action is time-barred and must be dismissed. In support of the motion, defendant proffers, inter alia , the summons and verified complaint, a copy of a contract between it and AECOM USA, Inc. ("AECOM"), the response to a Freedom of Information Law request it filed with the New York State Department of Transportation (the "DOT") and certain DOT "Diary Reports."
In opposition to the motion, plaintiffs contend that the claims asserted in the current action relate back to the claims asserted in actions that they timely commenced against other defendants involved with the same road work and with whom they assert Siddiqui is united in interest, including the State of New York - the owner of the roadway in question; H & L Contracting LLC ("H & L") - the general contractor for the road work; AECOM - which contracted with the State to provide construction inspection services and preventative maintenance and bridge repair and, in turn, subcontracted Siddiqui to perform inspection services, rendering the current action timely as well. Specifically, plaintiffs cite to the action they commenced against H & L and others in Supreme Court, Nassau County on August 18, 2017, Sommer v. Luque, et al. , Index Number 608436/2017; the action they commenced against the State in the Court of Claims on March 19, 2018, Sommer v. The State of New York , claim number 131152; and the action they commenced against AECOM in Supreme Court, Suffolk County on August 20, 2019, Sommer v. AECOM , Index Number 616391/2019. Plaintiffs contend that it was only after they received documents in discovery that they learned of Siddiqui's relevant involvement in the road work project and that they then promptly brought the current action. In support of their contention that the current action is timely, plaintiffs proffer the pleadings in their 2017 action against H & L and others, the pleadings in their March 19, 2018 action against the State of New York in the Court of Claims, and their pleadings against AECOM in their August 20, 2019 action. They also proffer the contract between DOT and AECOM and certain DOT Daily Work Reports. They point out that five actions were commenced against Siddiqui related to the subject accident in August 2019 and that these actions, along with plaintiffs' action against AECOM and fourteen other actions relating to the accident, were the subject of two compliance conferences conducted by this court on November 13, 2019 and January 29, 2020, respectively, in which counsel for Siddiqui and plaintiffs participated and which resulted in a master discovery order dated February 11, 2020.
The "relation back doctrine" allows a claim asserted against a co-defendant to toll the statute of limitations for claims against the later-sued defendant where the first sued and later sued defendants are "united in interest" (see CPLR 203[c] ; Poulard v. Papamihlopoulos , 254 AD2d 266, 267, 678 NYS2d 383 [1995], citing Buran v. Coupal , 87 NY2d 173, 177, 638 NYS2d 405 [1995] ; Pappas v. 31-08 Café Concerto , 5 AD3d 452, 453, 773 NYS2d 108[2d Dept 2004] ). The courts of this state have applied a three-part test to determine whether claims asserted against a subsequently added defendant relate back for statute of limitations purposes, to the date the action was first filed: " ‘In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant 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 him or her as well’ " ( Piemonte-Lehman v. Wajtlowski , 64 Misc 3d 1219, 2019 WL3404122 [Sup. Ct., Suffolk County 2019, Berland, J.], quoting Roseman v. Baranaowski , 120 AD3d 482, 484, 990 NYS2d 621 [2d Dept 2014] ).
"[T]he question of unity of interest is to be determined from an examination of (1) the jural relationship of the parties whose interests are said to be united and (2) the nature of the claim asserted against them by the plaintiff. In other words, when because of some legal relationship between the defendants they necessarily have the same defenses to the plaintiff's claim, they will stand or fall together and are therefore united in interest" ( Connell v. Hayden , 83 AD2d 30, 43, 443 NYS2d 383 [2d Dept 1981] ); see Mondello v. New York Blood Ctr.—Greater NY Blood Program , 80 NY2d 219, 226, 590 NYS2d 19 [1992] ; Xavier v. RY Mgt. Co. Inc. , 45 AD3d 677, 679, 846 NYS2d 227 [2d Dept 2007] ; Sowa v. S.J.N.H. Realty Corp. , 21 AD3d 893, 895, 800 NYS2d 749 [2d Dept 2005] ; Stulberger v. Bellucci , 251 AD2d 569, 570, 674 NYS2d 772 [2d Dept 1998] ). Unity of interest will generally be found where one of the parties is vicariously liable for the conduct of the other ( Raschel v. Rish , 69 NY2d 694, 697, 512 NYS2d 22 [1986] ).
Among other things, in the subcontract with AECOM, Siddiqui expressly assumed "toward AECOM" all of the obligations and responsibilities that AECOM assumed toward DOT in the prime contract between AECOM and DOT, "as they relate to the subcontracted services"; the terms of the prime contract were expressly incorporated into the AECOM-Siddiqui subcontract; and Siddiqui was made "subject to indemnification obligations under the Prime Contract to the same extent that AECOM is bound as it relates to the Subcontracted Services"; and Siddiqui agreed to "defend, indemnify and hold AECOM ... harmless from and against all claims, causes of action, suits of any nature, demands, judgments, damages, losses ... arising out of or related to [Siddiqui's] actual or alleged negligence, misconduct or breach of" the subcontract. To the extent that the plaintiffs' claims against the State and AECOM arise from Siddiqui's alleged failure properly to inspect and secure the roadway plates that, plaintiffs allege, caused or contributed to their respective decedent's injuries and death, the defenses of all three defendants are, at least as to that basis for liability, identical, whether or not the State and/or AECOM exercised control over defendant Siddiqui. To the extent that each of the State and AECOM were sued on account of the defects and dangers that Siddiqui allegedly caused or to which it allegedly contributed, plaintiffs' timely assertion of the claims against the State and against AECOM - with respect to the latter, timely both directly, as to the personal injury claims, and by operation of CPLR 203(c), as to their wrongful death claims - on account of alleged acts or omissions on the part of Siddiqui, was sufficient to put Siddiqui on constructive notice that "but for a mistake by the plaintiff[s] as to the identit[ies] of the proper parties, the action would have been brought against [it] as well" and to toll the statutes of limitations applicable to plaintiffs' claims against Siddiqui based upon that same conduct ( Roseman v. Baranaowski , supra , 120 AD3d at 484 )
That is, while the action against AECOM was commenced within three years after plaintiffs' claims for personal injury accrued, it was brought more than two years after the Adelsons died. The claims against AECOM for the deaths of Mr. and Mrs. Adelson are rendered timely by operation of CPLR 203(c) and AECOM's relevant unity of interest with the State of New York, against which all of plaintiffs' claims were asserted well within the two-year statute of limitations of EPTL § 5-4.1.
Defendant argues that plaintiffs' delay in bringing suit against defendant was inexcusable. In support of this contention, defendant proffers a copy of the DOT's response to a 2016 FOIL request made by Nelson Ramirez, the administrator of the estate of Patricia Pinales, which is replete with references to Siddiqui as evidence that plaintiffs could have brought suit against defendant within the statutory time frame. However, the requirement, under prior case law, that a plaintiff's mistake concerning the identities of the proper parties be excusable has been eliminated (see Buran v. Coupal , supra , 87 NY2d 178 [1995]; Austin v. Interfaith Med. Ctr. , 264 AD2d 702, 703, 694 NYS2d 730 [2d Dept 1999] ; Mondello v. New York Blood Ctr.-Greater NY Blood Program , supra 80 NY2d at 226 [1992] ; Nani v. Gould , 39 AD3d 508, 509, 833 NYS2d 198 [2d Dept 2007] ).
Accordingly, and for all of the foregoing reasons, the defendant's motion to dismiss the claims against it, as time barred, is denied.
The court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein.
The foregoing constitutes the decision and order of the court.