Branch v. Cmty. Coll. of the Cnty. of Sullivan
Decision Date | 16 March 2017 |
Citation | 148 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. |
Court | New 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.
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.
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
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
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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