Jaramillo v. Asconcio
| Decision Date | 21 June 2017 |
| Citation | 58 N.Y.S.3d 412,151 A.D.3d 947 |
| Parties | Julio JARAMILLO, respondent, v. Javier Sierra ASCONCIO, et al., defendants, Darek Cake, Inc., et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
John Murphy & Associates, P.C., New York, NY, for appellants.
MARK C. DILLON, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and BETSY BARROS, JJ.
In an action to recover damages for personal injuries, the defendants Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek appeal from an order of the Supreme Court, Queens County (Butler, J.), dated February 19, 2015, which denied their motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them as barred by the statute of limitations.
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek which was pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against the defendant Marzena Lojek, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
On January 1, 2011, the plaintiff allegedly was injured when he was struck by a vehicle operated by the defendant Javier Sierra Asconcio, and owned by the defendant Inter Euro Construction Corp. (hereinafter Inter Euro). The plaintiff alleges that at the time of the accident, Asconcio was operating his vehicle on behalf of the defendant Darek Cake, Inc., which was initially incorrectly sued herein as Darek Cake Company. On August 22, 2011, the plaintiff commenced this action to recover damages for personal injuries against Asconcio, Inter Euro, Darek Cake Company, and the Grimaldi Bakery Co. Dariusz Lojek, the principal of both Inter Euro and Darek Cake, Inc., was not initially named as a defendant in the action. However, on June 20, 2012, Dariusz Lojek's attorney filed a notice of appearance on his behalf, and demanded "that all Notices and Demands in this action be served upon the undersigned attorney at the address set forth below." In a letter to the attorneys for the plaintiff and the defendants in the action, Dariusz Lojek's attorney asked for "copies of any legal papers which you may have already filed in this action," and requested to be advised of "pending appearances."
Over three months later, on September 24, 2012, the plaintiff filed a supplemental summons and amended complaint deleting the defendant Grimaldi Bakery Co. from the caption, correcting the name of the defendant Darek Cake Company to Darek Cake, Inc., and adding Marzena Lojek and Dariusz Lojek, the alleged principals of Inter Euro and Darek Cake, Inc., as defendants in the action. Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek were served with the supplemental summons and amended complaint in December 2012.
On January 8, 2014, the Supreme Court so-ordered a stipulation between the plaintiff, Asconcio, and Inter Euro, in which those parties agreed to add Marzena Lojek and Dariusz Lojek as defendants in the action, and to correct the name of Darek Cake Company to Darek Cake, Inc.
The defendants Darek Cake, Inc., Marzena Lojek, and Dariusz Lojek subsequently made a pre-answer motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them as barred by the three-year statute of limitations. They argued that the stipulation agreeing to add Marzena Lojek and Dariusz Lojek as defendants, and agreeing to correct the name of Darek Cake Company to Darek Cake, Inc., was not so-ordered until January 8, 2014, more than three years after the accident occurred on January 1, 2011. The Supreme Court denied the motion on the ground that the supplemental summons and amended complaint was filed in September 2012, and served in December 2012, within the three-year statute of limitations.
At issue here is whether the plaintiff complied with CPLR 1003, which provides, in pertinent part, that "[p]arties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it." Here, the plaintiff served and filed the supplemental summons and amended complaint outside of the time periods specified in CPLR 1003, and before obtaining leave of court or a stipulation of the parties who had appeared in the action. Since the plaintiff failed to obtain leave...
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