Lopez Acosta v. Forrester

• Decision Date: 20 July 2012
• Docket Number: Motion Calendar No. 17, 18,Index No. 309534/09
• Citation: 2012 NY Slip Op 33335
• Court: New York Supreme Court
• Parties: REVEREND CARLOS LOPEZ ACOSTA, Plaintiff, v. JERMAINE A. FORRESTER, DIANA A. WHITE & VAN POOL INC & SPHINX EXPRESS, INC. Defendants

2012 NY Slip Op 33335

REVEREND CARLOS LOPEZ ACOSTA, Plaintiff,
v.
JERMAINE A. FORRESTER, DIANA A. WHITE
& VAN POOL INC & SPHINX EXPRESS, INC. Defendants

Index No. 309534/09
Motion Calendar No. 17, 18

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX PART 7

FILED: August 6, 2012
Motion Date: May 21, 2012
DATE: July 20, 2012

DECISION/ORDER Present: Hon. Wilma Guzman Justice Supreme Court

Recitation, as required by C.P.L.R. 2219(a), of the paper considered in the review of this motion to dismiss and motion for summary judgment.

Papers	Numbered
Plaintiff Notice of Motion,
Affirmation in Support, and Exhibits in Support	1
Affirmation in Opposition	2
Defendant Van Pool Inc. Notice of Cross-Motion	3
Reply and Opposition	4
Defendant Van Pool Inc. Order to Show Cause	5
Affirmation in Opposition	6

Upon the foregoing papers and after due deliberation, and upon oral argument, the Decision/Order on this motion is as follows:

Plaintiff, Reverend Carlos Lopez Acosta, moves for an order pursuant to CPLR § 3025 granting leave to amend his complaint with the addition of Galaxy Towers Inc., and Boulevard Lines Inc., as defendants to this suit. Plaintiff also moves for an order pursuant to CPLR § 3126 to strike the defendant's answer, or in the alternative, any such other and further relief the Court deems just and proper, for failing to comply with discovery demands. Defendant Van Pool Inc. (hereinafter referred to as "Van Pool"), submitted an affirmation in opposition.

Defendant Van Pool then filed a cross-motion to dismiss Plaintiff's claim pursuant to CPLR §§3042 and 3126, or in the alternative, a motion to compel pursuant to CPLR § 3121. This motion was withdrawn on the record during oral argument as Plaintiff has agreed to submit to Defendant's IME demands.

Defendant Van Pool moves for an order pursuant to CPLR § 3106(b) granting subpoenas to compel the attendance of non-party witnesses. Detective Michael Weguelin and Officer

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Giacomo Sciuto (hereinafter referred to as "the Officers").

Statement of Fact

Plaintiff commenced this action for injuries sustained as the result of an accident on October 17, 2007. Plaintiff is a Roman Catholic Priest who was struck by the passenger side rear view mirror of an oncoming vehicle as he peeked out between two buses he claims were illegally parked, obstructing his view of oncoming traffic. A witness, Dionisio Gomez (hereinafter referred to as "Gomez"), testified that the two buses were illegally parked and that both buses had the word "Sphinx" printed on their sides. Gomez also stated that the Officers arrived on the scene as the two buses were leaving but before the ambulance had arrived.

Plaintiff commenced this action on November 23, 2009 naming Van Pool Inc. and Sphinx Express, among others, as defendants. Neither Van Pool nor Sphinx Express appeared, and Plaintiff moved for default judgment against both parties. Default judgment was granted on July 12, 2010 and entered with the Clerk's Office on July 19, 2010. Plaintiff was then contacted by ARI Insurance Companies, the insurer for Defendant Van Pool, seeking an agreement to vacate the default judgment on behalf of Defendant Van Pool. Both ARI Insurance Companies and Defendant Van Pool's counsel identified Van Pool Inc. d/b/a Sphinx Transportation as the proper defendant. Plaintiff agreed and the default judgment was vacated on May 20, 2011 by stipulation. It was further stipulated that Plaintiff would agree to accept defendant's answer submitted on July 15, 2010.

Plaintiff first served discovery demands upon Defendant Van Pool on June 30, 2011, along with a cross notice of deposition for witness testimony. A Court Ordered Preliminary Conference was held on July 19, 2011 where Defendant Van Pool was ordered to respond to the plaintiff's discovery demands within 30 days, and where all parties were ordered to appear for depositions on October 6, 2011. Additionally, all parties were ordered to meet for a Compliance Conference on March 19, 2012. Defendant Van Pool responded to the discovery demands on September 30, 2011 but did not appear for the depositions on October 6, 2011. Defendant Van Pool also claimed all of their records, other than their insurance policy, were destroyed in a fire. Plaintiff contends that Defendant Van Pool scheduled a deposition for December 8, 2011 but failed to appear on that date. Defendant Van Pool then rescheduled for a deposition on January 31, 2012 but failed to appear on that date as well.

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On February 24, 2012 Plaintiff served notice of a motion to amend the complaint pursuant to CPLR § 3025 to add Galaxy Towers Inc. (hereinafter referred to as "Galaxy") and Boulevard Line Inc. (hereinafter referred to a "Boulevard") as co-defendants to the suit. All three companies were incorporated separately. All three owners share the same owner (Magdy Abdallah), share the same address, share the same d/b/a ("Sphinx Transportation"), and are all named on the same insurance policy.

Plaintiff Moves to Add Galaxy and Boulevard as Defendants Through the Relation Back Doctrine

At the time Plaintiff filed his motion to amend, over four years had passed since the accident on October 17, 2007. Any claims against Galaxy and Boulevard are untimely imless Plaintiff can invoke the relation back doctrine to demonstrate that the claims related back to the timely claim against the original defendant, Defendant Van Pool. See Vanderburg v. Brodman et al., 231 A.D.2d 146, 147 (1^st Dep't 1997). The relation back doctrine "allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for Statute of Limitations purposes where the two defendants are 'united in interest'" within the meaning of CPLR § 203(c). Buran v. Coupal, 87 N.Y.2d 173, 177 (1995). "[T]he doctrine enables a plaintiff to correct a pleading error - by adding either a new claim or a new party - after the statutory limitations period has expired." Id. The doctrine gives courts discretion to identify cases where relaxation of limitations strictures is justified to facilitate a decision on the merits if the correction will not cause undue prejudice to the defendant. Id at 178. To determine when the application of the relation back doctrine is appropriate, courts have adopted a three-pronged test. See Mondello v. New York Blood Ctr., 80 N.Y.2d 219 (1992). Under this standard, the three conditions that must be met in order for "claims against one defendant to relate back to claims asserted against another are that:

'(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is 'united in interest' with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits and (3) the new party knew or should have known that, but for an excusable mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him as well.'"

Buran v. Coupal, 87 N.Y.2d 173, 177 (citing Brock v. Sua, 83 A.D.2d 61, 69 (2d Dep't 1981)). All

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three conditions must be satisfied for the statutory relation back remedy to be...