Branch v. Cmty. Coll. of the Cnty. of Sullivan

Decision Date16 March 2017
Citation148 A.D.3d 1410,48 N.Y.S.3d 861
Parties Sharen BRANCH, as Administrator of the Estate of Robert Bastian, Deceased, Appellant, v. COMMUNITY COLLEGE OF the COUNTY OF SULLIVAN, Respondent.
CourtNew York Supreme Court — Appellate Division

148 A.D.3d 1410
48 N.Y.S.3d 861

Sharen BRANCH, as Administrator of the Estate of Robert Bastian, Deceased, Appellant,
v.
COMMUNITY COLLEGE OF the COUNTY OF SULLIVAN, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

March 16, 2017.


48 N.Y.S.3d 862

Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellant.

Law Office of Thomas K. Moore, White Plains (Norah M. Murphy of counsel), for respondent.

Before: GARRY, J.P., LYNCH, DEVINE and MULVEY, JJ.

DEVINE, J.

148 A.D.3d 1410

Appeal from an order of the Supreme Court (Schick, J.), entered February 9, 2016 in Sullivan County, which granted defendant's motion to dismiss the complaint.

Robert Bastian (hereinafter decedent) was a student at defendant and, in November 2007, he suffered a fatal heart attack in a campus dormitory. Plaintiff, decedent's mother, brought suit against the County of Sullivan in 2009, seeking to recover for its alleged negligence. Supreme Court (Melkonian, J.) dismissed that action upon the ground that the County did not own the dormitory or otherwise exercise control over it and, as such, owed no duty of care to decedent. This Court, and then the Court of Appeals, affirmed (see Branch v. County of Sullivan, 112 A.D.3d 1119, 977 N.Y.S.2d 127 [2013], affd. 25 N.Y.3d 1079, 12 N.Y.S.3d 598, 34 N.E.3d 349 [2015] ).

After the dismissal of the action against the County was affirmed by the Court of Appeals in 2015, plaintiff commenced the present action seeking similar relief against defendant. Following joinder of issue, defendant moved to dismiss the complaint as barred by the statute of limitations (see EPTL 5–4.1[1] ). Plaintiff responded

48 N.Y.S.3d 863

by arguing that the relation back doctrine applied (see CPLR 203 ). Supreme Court (Schick, J.) disagreed and granted the motion, prompting this appeal by plaintiff.

There is no dispute that the statute of limitations expired before this action was commenced and, as a result, the burden rested on plaintiff to show that the action was permitted to continue under the relation back doctrine (see Ahrorgulova v. Mann, 144 A.D.3d 953, 955, 42 N.Y.S.3d 203 [2016] ; Kaczmarek v. Benedictine Hosp., 176 A.D.2d 1183, 1184, 575 N.Y.S.2d 617 [1991] ). It is not clear that the relation back doctrine, which "allows a claim asserted against

148 A.D.3d 1411

a defendant in an amended filing to relate back to claims previously asserted against a codefendant for [s]tatute of [l]imitations purposes where the two defendants are ‘united in interest,’ " applies to claims asserted in a new and independent action (Buran v. Coupal, 87 N.Y.2d 173, 177, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995], quoting CPLR 203[b] ; see CPLR 203[c], [f] ; Davis v. Sanseverino, 145 A.D.3d 519, 520, 43 N.Y.S.3d 317 [2016] ; Alharezi v. Sharma, 304 A.D.2d 414,...

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  • Nemeth v. K-Tooling
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2022
    ...Assn., Inc. v New York State Pub. Empl. Relations Bd., 179 A.D.3d 1270, 1271 [2020]; Branch v Community Coll. of the County of Sullivan, 148 A.D.3d 1410, 1411-1412 [2017], lv denied 29 N.Y.3d 911 [2017]; Matter of Ayuda Re Funding, LLC v Town of Liberty, 121 A.D.3d 1474, 1476 [2014]; Windy ......
  • Nemeth v. K-Tooling
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2022
    ... ... been brought against him or her" (Matter of Sullivan ... v Planning Bd. of the Town of Mamakating, 151 ... 1270, 1271 [2020]; Branch v Community Coll. of the County ... of Sullivan, 148 ... ...
  • Nyahsa Servs., Inc. v. People Care Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • December 20, 2018
    ...said counterclaims were entitled to the benefit of the relation back doctrine (see Branch v. Community Coll. of the County of Sullivan, 148 A.D.3d 1410, 1410, 48 N.Y.S.3d 861 [2017], lv denied 29 N.Y.3d 911, 63 N.Y.S.3d 1, 85 N.E.3d 96 [2017] ). In order to avail itself of the benefit of th......
  • Pollock v. Rengasamy
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    • Washington Supreme Court
    • May 18, 2022
    ... ... Matter of Sullivan v Planning Bd. of the Town of ... Mamakating, 151 A.D.3d ... Branch v Community Coll. of the County of Sullivan, ... 148 ... ...
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