CPLR § 203(c); CPLR R. 305(a)

CPLR § 203 Method of computing periods of limitation generally

CPLR R. 305 Summons; supplemental summons, amendment

(c) Amendment

Issing v Madison Sq. Garden Ctr., Inc., 2009 NY Slip Op 03599 (App. Div., 1st, 2009)

Plaintiff slipped and fell in Madison Square Garden while attending a
basketball game and filed a complaint naming MSG Center that was served
it on the Secretary of State pursuant to Business Corporation Law §
306. It appears that MSG Center, which once owned and managed the arena
where plaintiff fell, is a foreign corporation that has not been
authorized to do business in New York State since 1998, and that no
attempt to serve MSG LP, which has owned and managed the arena since
1998, was made until after the three-year statute of limitations had
run. Plaintiffs, therefore, rely on the relation-back doctrine (CPLR
203[c])
to argue that the timely service made on MSG Center should be
deemed to have been service on MSG LP. Such argument fails because MSG
Center was not served pursuant to Business Corporation Law § 307, which
sets forth procedures for serving an unauthorized foreign corporation
that are jurisdictional and require "strict compliance"
(Flick v Stewart-Warner Corp.,
76 NY2d 50, 57 [1990]). Since plaintiffs argue that, for statute of
limitations purposes, the service made on MSG Center amounted to
service on MSG LP, MSG LP can assert defenses that could have been
raised by MSG Center had it appeared in the action, and since MSG
Center was not properly served pursuant to section 307, timely service
cannot be deemed to have been made on MSG LP. In any event, the
relation-back doctrine would not avail plaintiff even if MSG Center had
been properly served where it does not appear that MSG Center and MSG
LP are "united in interest"
(see generally Buran v Coupal, 87 NY2d 173, 177-178 [1995]), i.e., that they "necessarily have the same defenses to the plaintiff[s'] claim" (Lord Day & Lord, Barrett, Smith v Broadwell Mgt. Corp., 301 AD2d 362, 363 [2003] [internal quotation marks omitted]) — MSG Center's defense [*2]is
lack of jurisdiction and MSG LP's defense is the statute of
limitations. Moreover, even if MSG Center were properly served,
plaintiffs do not show that MSG Center and MSG LP are the same entity
such as might permit correction of a misnomer pursuant to CPLR 305(c)
(see Achtziger v Fuji Copian Corp., 299 AD2d 946, 947 [2002], lv dismissed in part and denied in part 100 NY2d 548 [2003]).

The bold is mine.

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