Supplemental summons not filed–CPLR R. 305(a)–>Dismissed–CPLR R. 3211(a)(2)

CPLR R. 305 Summons; supplemental summons, amendment
(a) Summons; supplemental summons

CPLR R. 3211(a)(2) the court has not jurisdiction of the subject matter of the cause of action

CPLR R. 3211(a)(5) the
cause of action may not be maintained because of arbitration and award,
collateral estoppel, discharge in bankruptcy, infancy or other
disability of the moving party, payment, release, res judicata, statute
of limitations, or statute of frauds

CPLR § 203 Method of computing periods of limitation generally
(c) Claim in complaint where action commenced by filing.
In an action which is commenced by filing, a claim asserted in the
complaint is interposed against the defendant or a co-defendant united
in interest with such defendant when the action is commenced.

Benn v Losquadro Ice Co., Inc., 2009 NY Slip Op 06307 (App. Div., 2nd, 2009)

The plaintiff was injured on June 20, 2003, when she slipped and
fell while working at a restaurant known as Orin's Seafood Hideaway,
located at 1683 Utica Avenue in Brooklyn. She commenced this negligence
action against, among others, the defendant Losquadro Ice Company, Inc.
(hereinafter Losquadro), the owner of the subject premises. Losquadro
commenced a third-party action against the defendant third-party
defendant Foodsaver New York, Inc., a/k/a Orin's Seafood Hideaway
(hereinafter Foodsaver). The plaintiff filed an amended complaint on
April 11, 2006, adding Foodsaver as a defendant in the action. In its
answer to the third-party complaint, Foodsaver disclosed that it had
subleased a portion of the subject premises to the appellant Utica
Restaurant Corp. (hereinafter Utica). On June 9, 2006, Losquadro served
the parties and Utica with an amended third-party complaint, which
joined Utica as a third-party defendant. On September 5, 2006, the
plaintiff filed a second amended complaint which joined Utica as a
direct defendant.

It is the filing of a supplemental summons and complaint which
commences an action against a newly-joined defendant or a third-party
(see CPLR 305[a]; Perez v Paramount Communications, 92 NY2d 749, 756; Tricoche v Warner Amex Satellite Entertainment Co., 48 [*2]AD3d 671, 673; Matter of Williams v County of Genesee,
306 AD2d 865, 867). It is undisputed that Losquadro's amended
third-party complaint was never filed with the court. Therefore, that
branch of Utica's motion which was pursuant to CPLR 3211(a)(2) to
dismiss the amended third-party complaint insofar as asserted against
it should have been granted.

Contrary to Utica's contention, however, it was not entitled to
dismissal pursuant to CPLR 3211(a)(5) of the plaintiff's second amended
complaint insofar as asserted against it. A claim asserted against a
defendant in an amended filing may relate back to claims previously
asserted against a codefendant for statute of limitations purposes
where the two defendants are "united in interest" (CPLR 203[c]
; see Buran v Coupal, 87 NY2d 173; Brock v Bua,
83 AD2d 61). The deposition testimony of Orin Tucker, the owner of both
Foodsaver and Utica, demonstrated that the relationship between the two
companies was such that Utica could be charged with notice of the
institution of the action under this doctrine and would not be
prejudiced in maintaining its defense on the merits (see Buran v Coupal, 87 NY2d at 178; Brock v Bua, 83 AD2d at 69).

The bold is mine.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: