Holst v. Edinger

• Decision Date: 28 April 1983
• Citation: 461 N.Y.S.2d 813,93 A.D.2d 313
• Parties: Dorothy M. HOLST and Lambert Holst, Plaintiffs-Appellants, v. Carl W. EDINGER and Eileen Edinger, Defendants. Carl W. EDINGER, Third-Party Plaintiff, v. Michelle LOVECCHIO and Matthew Lovecchio, Third-Party Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 813

461 N.Y.S.2d 813

93 A.D.2d 313

Dorothy M. HOLST and Lambert Holst, Plaintiffs-Appellants, v. Carl W. EDINGER and Eileen Edinger, Defendants.

Carl W. EDINGER, Third-Party Plaintiff, v. Michelle LOVECCHIO and Matthew Lovecchio, Third-Party

Defendants-Respondents.

Supreme Court, Appellate Division First Department.

April 28, 1983.

Gerald E. Loehr, New York City, for plaintiffs-appellants.

Charles F. Brady, Baldwin, of counsel (Benjamin Purvin, Lake Success, attorney), for third-party defendants-respondents.

Before MURPHY, P.J., and SULLIVAN, SILVERMAN, LYNCH and MILONAS, JJ.

SILVERMAN, Justice.

This is an appeal from an order of the Supreme Court, Special Term, denying plaintiffs' motion for leave to serve a proposed amended complaint asserting a direct claim against third-party defendants.

A three car accident occurred on July 31, 1978. Plaintiff Dorothy M. Holst was in one car; defendants Edinger were the owner and operator of a second car; third-party defendants Lovecchio were the owner and operator of a third car. Plaintiffs Holst commenced this action on August 21, 1980 against defendants Edinger alleging that the accident was caused solely by reason of said defendants' negligence. On November 14, 1980 defendant Carl Edinger served his answer to plaintiffs' complaint, and on the same day served a third-party summons and complaint on third-party defendants Lovecchio alleging that if plaintiffs sustained injuries through any fault other than their own, then such injuries were due to the primary and active and sole fault of the third-party defendants, and defendant-third-party plaintiff Edinger demanded judgment dismissing plaintiffs' complaint, and in the event judgment is rendered against the third-party plaintiff, then the third-party plaintiff Edinger has judgment over against the third-party defendants Lovecchio. The third-party defendants served their answer to the third-party complaint on the attorneys for the plaintiffs and the third-party plaintiff on or about December 19, 1980. On or about October 5, 1981 plaintiffs moved for leave to serve a proposed amended complaint upon the third-party defendants Lovecchio alleging that the accident was caused by the negligence of the original defendants and the third -party defendants, and asking for judgment against defendants and/or third-party defendants.

Special Term denied leave on the grounds that more than three years having elapsed since the accident, plaintiffs' claim against the third-party defendants was barred by the statute of limitations citing Trybus v. Nipark Realty Corp., 26 A.D.2d 563, 271 N.Y.S.2d 5. Plaintiffs urge, however, that their action as against the third-party defendants is not barred by the statute of limitations because of the provision of CPLR § 203(e):

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.

As the statute does not state whether or not it is applicable to an amended complaint served upon someone not named in the original complaint, there is room for argument both ways. Appellate Divisions of this state have divided on it. The Fourth Department Appellate Division has held that § 203(e) does apply so as to cause plaintiffs' amended complaint for the first time alleging a direct claim against the third-party defendants to relate back at least to the date of the service of the third-party complaint. Lancaster Silo & Block Co. v. Northern Propane Gas Co., 75 A.D.2d 55, 60, 427 N.Y.S.2d 1009. The Third Department Appellate Division, and the Second Department have held the other way. Knorr v. City of Albany, 58 A.D.2d 904, 396 N.Y.S.2d 507 (3rd Dept.); Trybus v. Nipark Realty Corp., supra, 26 A.D.2d 563, 271 N.Y.S.2d 5 (2d Dept.); but cf. Brock v. Bua, 83 A.D.2d 61, 65 n, 443 N.Y.S.2d 407 (2d Dept.); and see McCabe v. Queensboro Farm Products, Inc., 15 A.D.2d 553, 223 N.Y.S.2d 21, (2d Dept.), aff'd 11 N.Y.2d 963, 229 N.Y.S.2d 11, 183 N.E.2d 326.

As Professor, now Judge, McLaughlin said:

There is no doubt that CPLR 203(e) was drafted with only one problem in mind: amending a pleading to add a new claim against the same party. For whatever reason, the CPLR does not address the statute of limitations problem that arises when a new party is brought into the action after its commencement. As the original Practice Commentary notes, there has been a profound reluctance in New York to permit an amended pleading to relate back--for purposes of the statute of limitations--to a point before the new party was joined.

There is a growing restlessness with this result. Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C203:11, 1982-83 Cumulative Annual Pocket Part, p. 47.

Again the statute refers back to the service of...