Johnson v. McKay

• Docket Number: 530188
• Decision Date: 29 September 2022
• Citation: 208 A.D.3d 1558,175 N.Y.S.3d 748
• Parties: Johnathan JOHNSON, Appellant, v. Jeff MCKAY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 1558

175 N.Y.S.3d 748

Johnathan JOHNSON, Appellant,

v.Jeff MCKAY et al., Respondents.

530188

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: September 13, 2022

Decided and Entered: September 29, 2022

Johnathan Johnson, Marcy, appellant pro se.

Letitia James, Attorney General, Albany (Kevin C. Hu of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Clark, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Fisher, J. Appeal from an order of the Supreme Court (Robert G. Main Jr., J.), entered September 26, 2019 in Franklin County, which, among other things, granted defendants’ motion for summary judgment dismissing the complaint.

In 2013, plaintiff, an incarcerated individual, commenced an action in Supreme Court, asserting 42 USC § 1983 claims alleging that, during the time period of 2010 to 2013, defendants violated his right to access the courts under the U.S. Constitution. Defendants removed the action to federal court (see 28 USC §§ 1441 [a]; 1446). Ultimately, in May 2017, the U.S. District Court for the Northern District of New York dismissed the action due to plaintiff's failure to comply with the directives of a prior anti-filing injunction order entered against him in 2012 that requires him to obtain leave of the court for permission prior to initiating "any pro se action ... or filing a document of any kind with the court."¹

In September 2017, plaintiff commenced another action in Supreme Court, alleging the same allegations as in his 2013 action. Defendants served an answer that did not assert the statute of limitations as an affirmative defense (see CPLR 3211[e] ). In April 2019, defendants moved to both amend their answer to include a statute of limitations defense and for summary judgment dismissing the complaint based upon, among other things, the statute of limitations defense, and plaintiff opposed. Supreme Court granted defendants’ motion to amend the complaint, and granted the motion for summary judgment dismissing the complaint. Plaintiff appeals.

We affirm. Contrary to plaintiff's contention, Supreme Court did not abuse its discretion in granting defendants leave to amend their answer to assert a statute of limitations defense. "[D]efenses waived under CPLR 3211(e) can nevertheless be interposed in an answer amended by leave of court pursuant to CPLR 3025(b) so long as the amendment does not cause the other party prejudice or surprise resulting directly from the delay" ( Endicott Johnson Corp. v. Konik Indus. Inc., 249 A.D.2d 744, 744, 671 N.Y.S.2d 557 [3d Dept. 1998] ; see U.S. Bank N.A. v. Laino, 172 A.D.3d 947, 947, 100 N.Y.S.3d 302 [2d Dept. 2019] ). "Delay alone is not sufficient to deny a motion to amend unless accompanied by significant prejudice" ( Architectural Bldrs. v. Pollard, 267 A.D.2d 704, 705, 700 N.Y.S.2d 251 [3d Dept. 1999] [citation omitted]). Finding no evidence of prejudice in the record, we will not disturb Supreme Court's exercise of its discretion in granting that part of defendants’ motion seeking to amend their answer to assert a statute of limitations defense (see Cahill v. Lat, 39 A.D.3d 1013, 1014, 834 N.Y.S.2d 363 [3d Dept. 2007] ; McGaulley v. Telling, Kelting & Potter, P.C., 241 A.D.2d 669, 670, 660 N.Y.S.2d 92 [3d Dept. 1997] ).

As to Supreme Court's granting of defendants’ summary judgment motion based upon their statute of limitations defense, plaintiff's 42 USC § 1983 access-to-court claims are governed by a three-year statute of limitations (see CPLR 214[5] ; McFadden v. Amodio, 149 A.D.3d 1282, 1283, 52 N.Y.S.3d 538 [3d Dept. 2017] ). Plaintiff does not contest that his 2017 action, based upon occurrences taking place from 2010 to 2013, was initiated beyond the statute of limitations. Rather, plaintiff relies on the saving provisions of CPLR 205(a). The statute provides that "[i]f an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."

Plaintiff argues that District Court's dismissal of his timely 2013 complaint for failure to comply with the directives of its prior anti-filing injunction order entered against him did not constitute a final judgment on the merits and, inasmuch as his 2017 complaint was commenced within six months of the dismissal of the 2013 complaint, the 2017 action may proceed. We disagree. Pursuant to Federal Rules of Civil Procedure rule 41(b), as relevant here, plaintiff's failure to comply with a court order is grounds for dismissal of the action and, "[u]nless the dismissal order says otherwise, a dismissal ... operates as an adjudication on the merits." In dismissing plaintiff's 2013 complaint for...