Brock v. Bua
| Citation | 443 N.Y.S.2d 407,83 A.D.2d 61 |
| Parties | Peter BROCK, Respondent-Appellant, v. William BUA, Respondent, and Jaguar Graphics, Inc., Appellant-Respondent. |
| Decision Date | 19 October 1981 |
| Court | New York Supreme Court Appellate Division |
Clark Gagliardi & Miller, P. C., White Plains (Lawrence T. D'Aloise, White Plains, of counsel), for appellant-respondent.
Rosen, Hacker & Nierenberg, New Rochelle (Jonathan S. Hacker, New Rochelle, on the brief), for respondent-appellant.
Before MOLLEN, P. J., and HOPKINS, DAMIANI, WEINSTEIN and THOMPSON, JJ.
This is an action to recover damages for libel. In early 1978 the plaintiff, Peter Brock, was the general manager of the Sheraton Plaza Inn in the City of New Rochelle. The individual defendant, William Bua was the president and a stockholder of the defendant Jaguar Graphics, Inc. Defendant Bua met and spoke with plaintiff concerning a program of local advertising to promote the hotel's banquet and other facilities. On May 5, 1978 Bua wrote a letter to the Senior Vice-President for public relations of the Sheraton Corporation upon the letterhead of "Jaguar Graphics, Inc." and signed it as "President" of Jaguar. The letter alleged that Jaguar had prepared a newspaper advertisement and a brochure, and that Brock had run the newspaper advertisement but had not paid for it and had plagiarized the brochure. The letter claimed that Brock was "a brash, rude discourteous and possibly dishonest young man."
On July 7, 1978 plaintiff commenced this action by serving defendant Bua with a summons and complaint naming him as the only defendant and charging that the letter of May 5, 1978 was libelous.
On December 18, 1979 plaintiff's motion for leave to add Jaguar Graphics, Inc. as a party defendant and to serve a supplemental summons and amended complaint upon it was granted without opposition. The supplemental summons and amended complaint were served upon the corporation on January 17, 1980. The amended complaint, in substance, reiterated the allegations of libel against defendant Bua, and alleged that the defamation in the letter of May 5, 1978 was uttered in connection with the business of the corporate defendant. The answer of Jaguar Graphics, which was served on or about February 19, 1980, denied the material allegations of the complaint and, inter alia, asserted the affirmative defense of the Statute of Limitations.
By notice of motion dated April 22, 1980, defendant Jaguar Graphics moved to dismiss the amended complaint against it upon the ground that plaintiff's claim was barred by the Statute of Limitations. The plaintiff cross-moved for summary judgment against both defendants and to strike the affirmative defense of the Statute of Limitations asserted by the corporate defendant. Special Term denied the motion in chief, granted the branch of the cross motion seeking dismissal of the affirmative defense and denied the branch of the cross motion seeking summary judgment, stating, in relevant part:
The appeal of the defendant Jaguar Graphics presents the question of when a claim asserted against a new party in an amended pleading is to be deemed interposed. Discussion of this issue requires a basic understanding of the purposes behind the Statute of Limitations. Those purposes are more fully discussed in Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383, but suffice it to say that the salient reason for limiting the time within which an action may be brought concerns the effect of long time delays upon the availability and reliability of evidence and the consequent prejudice to the fair and accurate determination of factual disputes (see 1 Weinstein-Korn-Miller, N.Y. Prac., par. 201.01, pp. 2-7). Statutes of Limitation were devised "to afford protection to defendants against defending stale claims after a reasonable period of time had elapsed during which a person of ordinary diligence would bring an action" (Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 429, 301 N.Y.S.2d 23, 248 N.E.2d 871). In short, the Statute of Limitations presumes that a proper investigation and preparation of a defense cannot be undertaken after the expiration of the period of limitation.
Special Term relied upon subdivision (e) of CPLR 203 to hold that the date of interposition of plaintiff's claim against Jaguar Graphics related back to the date that the claim asserted in the original complaint was interposed against defendant Bua. That subdivision had no counterpart in prior practice statutes. It was recommended by the drafters of the CPLR merely "to overcome the effect of Harriss v. Tams" (258 N.Y. 229, 179 N.E. 476) and related cases (see 2d Preliminary Report Advisory Commission on Practice & Procedure, p. 51). In the Harriss case the Court of Appeals held that interposition of a claim asserted for the first time in an amended pleading did not relate back to the date of service of the summons for purposes of the Statute of Limitations if it "introduced a cause of action upon a different obligation or liability, and for different conduct from that specified in the original complaint" (258 N.Y. at p. 243, 179 N.E. 476). Harriss involved only the assertion of a new legal theory against a person already a party and not the addition of a new party. At its core was the view that a defendant need only investigate the underlying facts insofar as they were relevant to the allegations of the cause of action asserted in the original complaint and that an amendment which changed legal theories and was based upon "different" conduct would prejudice a defendant by requiring a belated investigation of other factual circumstances after the expiration of the Statute of Limitations (see 258 N.Y. at pp. 244-245, 179 N.E. 476).
By overruling Harriss v. Tams (supra), the practical effect of subdivision (e) of CPLR 203 was to necessitate that a defendant now make a comprehensive timely examination of all the facts regarding the transactions, occurrences, or series of transactions or occurrences of which the plaintiff's complaint gives notice, rather than confining his preparation of a defense to only those facts disclosed in plaintiff's complaint. If the plaintiff then subsequently sought to amend his complaint to allege new causes of action arising from those transactions or occurrences, the defendant could no longer rely upon the Statute of Limitations but he would be able to prepare a defense to them on the merits. Subdivision (e) is not applicable to the assertion of claims against new parties in amended pleadings for the reason that timely notice to defendant A of the transactions or occurrences underlying plaintiff's claim, sufficient to enable him to prepare a defense, cannot be automatically imputed to defendant B who was served after the expiration of the Statute. For this reason we have held that subdivision (e) alone does not permit the date of interposition of a claim asserted against a new defendant in an amended pleading to relate back to the date of claim interposition against the original defendant (Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 564, 271 N.Y.S.2d 5; cf. Capellino Abattoir, Inc. v. Lieberman, 70 A.D.2d 713, 714, 416 N.Y.S.2d 436) *.
The CPLR contains another relation back provision with respect to defendants served after the expiration of the Statute of Limitations. CPLR 203 (subd. provides, in substance, that a claim against a codefendant "united in interest" with a timely-served defendant shall relate back to the date plaintiff's claim was interposed against the latter. In this case, plaintiff properly obtained leave to serve a supplemental summons and complaint, which were duly served upon Jaguar Graphics, Inc., making it a codefendant of the original defendant Bua. Clearly, Jaguar Graphics is "united in interest" with its employee Bua (see Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383, supra; Hatch v. Cherry-Burrell Corp. 274 App.Div. 234, 241, 82 N.Y.S.2d 322; Plumitallo v. 1407 Broadway Realty Corp., 279 App.Div. 1019, 111 N.Y.S.2d 720; Zeitler v. City of Rochester, 32 A.D.2d 728, 302 N.Y.S.2d 207; Jordan v. Westhill Cent. School Dist., 42 A.D.2d 1043, 348 N.Y.S.2d 620).
In the case of Shaw v. Cock, 78 N.Y. 194 it was held that in order for claim interposition against a codefendant to relate back to the date of timely service upon a defendant with whom he is united in interest, the codefendant must have been named in the process previously served upon the defendant. In discussing section 99 of the Code of Procedure of 1848, the predecessor of the unity of interest rule now contained in CPLR 203 (subd. the Court of Appeals there stated, in relevant part (supra, pp. 197-198):
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