Cucuzza v. Vaccaro

• Decision Date: 10 June 1985
• Citation: 109 A.D.2d 101,490 N.Y.S.2d 518
• Parties: Vito CUCUZZA, Appellant, v. Frank A. VACCARO, P.E., Defendant Third-Party Plaintiff, Robert Beuthe, d/b/a Beuthe Excavating, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 518

490 N.Y.S.2d 518

109 A.D.2d 101

Vito CUCUZZA, Appellant, v. Frank A. VACCARO, P.E., Defendant Third-Party Plaintiff, Robert Beuthe, d/b/a Beuthe Excavating, Third-Party

Defendant-Respondent.

Supreme Court, Appellate Division,

Second Department.

June 10, 1985.

Dorfman & Bloom, New York City (Jack H. Dorfman, New York City, of counsel), for appellant.

Composto & Longo, Brooklyn (Frank A. Composto, Brooklyn, of counsel), for third-party defendant-respondent.

Before GIBBONS, J.P., and BROWN, NIEHOFF and LAWRENCE, JJ.

LAWRENCE, Justice.

The instant appeal presents the issue of whether a plaintiff's direct claim against a third-party defendant should be deemed to relate back to the date of service of the third-party complaint pursuant to CPLR 203(e) for purposes of determining the timeliness of the claim. We start with a brief review of the facts.

On or about June 13, 1979, the plaintiff Vito Cucuzza commenced the instant action by serving the defendant Frank A. Vaccaro, P.E., with a summons and complaint, naming him as the only defendant. The complaint alleged, in relevant part, that in or about April 1977, the plaintiff had hired the defendant to arrange for the demolition of three buildings owned by the plaintiff. Plaintiff claimed he had sustained damages because the "defendant and/or his agents, servants or employees" had negligently performed the demolition work, which began in 1978.

On or about August 20, 1979, the defendant served upon both the plaintiff and the third-party defendant Robert Beuthe, d/b/a Beuthe Excavating, an answer to the plaintiff's complaint and a third-party complaint (one document). Defendant alleged, in pertinent part, that the third-party defendant had done the actual demolition work referred to in the plaintiff's complaint and that "[t]he negligence and tortious acts, if any, alleged in plaintiff's complaint were committed by the third party defendant, without contribution on the part of [defendant] third party plaintiff". Issue was joined in the third-party action on or about February 27, 1980, when the third-party defendant served an answer to the third-party complaint. On or about the same day, the third-party defendant served an answer to the plaintiff's complaint, which pleading had been served upon him by defendant in accordance with CPLR 1007.

On or about May 26, 1983, after the expiration of the period of limitation within which the plaintiff could have timely commenced an independent action against the third-party defendant (see, CPLR 214[4] ) or could have amended the complaint without leave of court (CPLR 1009), the plaintiff moved for leave to serve a proposed amended complaint upon the third-party defendant to assert a direct claim against him.

Special Term denied the plaintiff's motion, stating:

"Plaintiff's proposed cause of action in negligence against Beuthe is barred by the three-year Statute of Limitations. CPLR 214(4). It is well settled that CPLR 203(e) cannot be imposed to relate plaintiff's claim back to the time of service of the original complaint upon defendant Frank A. Vaccaro, P.E., since it did not give notice to the third-party defendant of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading. Trybus v. Nipark Realty Corp., 26 AD2d 563 (2d Dept.) The Court held in Trybus that the 'relation-back' doctrine of CPLR 203(e) is inapplicable since the effect would be to state a new cause of action barred by the Statute of Limitations (Trybus v. Nipark Realty Corp., supra, at 564 ) and because notice to defendant Vaccaro of the transactions or occurrences to be proven cannot be automatically imputed to third-party defendant Beuthe. Brock v. Bua, 83 A.D.2d 61, 65 (2d Dept.)".

On this appeal, the plaintiff now asks us to consider his argument, which Special Term rejected sub silentio, that his direct claim against the third-party defendant was not barred by the Statute of Limitations, since, pursuant to CPLR 203(e), the claim should be deemed to relate back to the date the third-party complaint was served upon the third-party defendant, which service was within the applicable period of limitation.

Special Term, in denying the plaintiff's application, relied upon our decisions in Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5 and Brock v. Bua, 83 A.D.2d 61, 443 N.Y.S.2d 407. However, the plaintiff's contention was not specifically raised or considered in Trybus v. Nipark Realty Corp. (supra) by either the majority or dissent, or by the court in Brock v. Bua, supra, at p. 65, n., 443 N.Y.S.2d 407, which case did not involve third-party practice. Nor was the issue considered in Allstate Ins. Co. v. EMSCO Homes, 93 A.D.2d 874, 461 N.Y.S.2d 429, appeal dismissed 60 N.Y.2d 644, wherein the plaintiff sought to amend its complaint prior to the expiration of the applicable Statute of Limitations. Therefore, contrary to our dissenting colleague's position, we are not bound "under principles of stare decisis" to hold that CPLR 203(e) is inapplicable to the plaintiff's argument asserted herein.

CPLR 203(e) provides as follows:

"(e) Claim in amended pleading. A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading."

We now hold that CPLR 203(e) should be so construed as to allow the plaintiff's claim against the third-party defendant to relate back to the date of the service of the third-party complaint. Since the third-party complaint was served within the applicable period of limitation, dismissal of the plaintiff's claim against the third-party defendant on the ground of the Statute of Limitations is precluded (see, Holst v. Edinger, 93 A.D.2d 313, 315-316, 461 N.Y.S.2d 813 [1st Dept.]; Lancaster Silo & Block Co. v. Northern Propane Gas Co. 75 A.D.2d 55, 60, 427 N.Y.S.2d 1009 [4 th Dept.] ). ^*

The interpretation we have placed on CPLR 203(e) is consistent with the principle laid down by the Court of Appeals in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, that responsibility for damage to injured persons should be borne by those parties responsible for the injury, and as conceded by our dissenting colleague, is consistent with the purpose of the Statute of Limitations. As our former colleague, the late Justice Vincent D. Damiani, pointed out in Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383, the primary purpose of a Statute of Limitations is to compel the exercise of a right of action within a reasonable time so that the defendant will have a fair opportunity to prepare an adequate defense free of the attendant prejudices occasioned by inordinate delay.

In the instant case, the third-party defendant received actual notice of the occurrences to be proved under the plaintiff's proposed amended complaint within the statutory period of limitation for bringing an independent action against him. By the service of the third-party complaint together with the original complaint (CPLR 1007), the third-party defendant became fully aware that his alleged negligence was in issue. In addition, he answered both the original complaint, as well as the third-party complaint and had an opportunity to participate in all pretrial proceedings. Thus, from the time of the service of the third-party complaint, the third-party defendant was fully a party to this action with clear notice of the allegations charging him with ultimate liability (see, Holst v. Edinger, 93 A.D.2d 313, 315-16, 461 N.Y.S.2d 813, supra ). The third-party defendant's claim of prejudice with respect to his preparation of a proper and adequate defense is therefore unavailing.

Finally, with respect to the third-party defendant's claim of laches based upon the plaintiff's delay in seeking leave to serve an amended complaint, we note that CPLR 3025(b) provides that leave to serve amended pleadings "shall be freely given upon such terms as may be just including the granting of costs and continuances". In the instant case, we find no reason not to apply this rule since the third-party defendant is in no worse position than he would have been if the plaintiff had amended his complaint within 20 days after service of the third-party complaint, which he was free to do without leave pursuant to CPLR 1009 (see, Holst v. Edinger, supra, at p. 316, 461 N.Y.S.2d 813).

On the facts and circumstances herein, we deem it appropriate to permit the plaintiff to amend his complaint to assert a direct claim against the third-party defendant, "thus enabling the court to render complete justice among all the parties" (Holst v. Edinger, supra, at p. 316, 461 N.Y.S.2d 813).

Accordingly, the order appealed from should be reversed and the plaintiff's motion for leave to serve an amended complaint should be granted.

Order of the Supreme Court, Richmond County, entered July 20, 1983, reversed, without costs or disbursements, and motion for leave to serve an amended complaint in the form annexed to plaintiff's moving papers, asserting a cause of action directly against the third-party defendant granted. Plaintiff's time to serve his amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry....