Martin v. Venetis Enters., Inc.

• Decision Date: 18 September 2015
• Docket Number: Index No. 108979/2011
• Citation: 2015 NY Slip Op 32077 (U)
• Parties: IRIS MARTIN, Plaintiff, v. VENETIS ENTERPRISES, INC. and RDS PHARMACY, INC., d/b/a CENTURY PHARMACY, Defendants.
• Court: New York Supreme Court

2015 NY Slip Op 32077(U)

IRIS MARTIN, Plaintiff,
v.
VENETIS ENTERPRISES,
INC. and RDS PHARMACY,
INC., d/b/a CENTURY PHARMACY, Defendants.

Index No. 108979/2011

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15

FILED: September 23, 2015
September 18, 2015

DECISION and ORDER

Mot. Seq. #002

HON. EILEEN A. RAKOWER, J.S.C.

Plaintiff, Iris Martin ("Plaintiff"), brings this action for personal injuries sustained in a slip and fall accident (the "Accident") on January 4, 2011, on the sidewalk located in front of the residential building located at 225 Madison Street, New York, New York (the "Premises"). Plaintiff's complaint names defendant, Venetis Enterprises, Inc. ("Venetis Enterprises"), as owner of the Premises.

Plaintiff commenced this action on August 4, 2011, by summons and complaint. Plaintiff previously moved for, and obtained, a default judgment against Venetis Enterprises, by Order dated December 17, 2012 (the "Default Judgment").

Plaintiff now moves for an Order, pursuant to CPLR § 3026, granting Plaintiff leave to amend Plaintiff's complaint to add proposed defendants, Elefterios Venetis ("Mr. Venetis") and E.S. Venetis Properties, Inc. ("E.S. Venetis"), as defendants in this case and amending the caption to reflect the change in parties. In support, Plaintiff submits: the attorney affirmation of Steven J. Labell ("Labell"), dated April 22, 2015; copies of Plaintiff's pleadings herein; a copy of the New York State Division of Corporations search results for Venetis Enterprises; copies of certain correspondence exchanged between the parties; a copy of the Default Judgment; a copy of the E-law printout for this case; a copy of the deed for the Premises (the "Deed"); and, a copy of the New York State Division of Corporations search results for E.S. Venetis.

Page 2

No opposition is submitted.

CPLR § 3025 permits a party to amend or supplement its pleading "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." (CPLR § 3025[b]). Pursuant to CPLR § 3025(b), such "leave shall be freely given upon such terms as may be just including the granting of costs and continuances." (CPLR § 3025 [b]; Konrad v. 136 East 64th Street Corp., 246 A.D.2d 324, 325 [1st Dep't 1998]). In addition, pursuant CPLR § 1003, parties may be added at any stage of the action by leave of court. (CPLR § 1003).

Where the Statute of Limitations period has expired, a plaintiff may add a new party or claim in an amended pleading pursuant to the relation back doctrine. (Buran v. Coupal, 87 N.Y.2d 173, 177 [1995]; CPLR § 203[c]). This doctrine allows claims asserted against one defendant to "relate back" to claims previously asserted against another defendant for purposes of the Statute of Limitations if three criteria are met:

(1) both claims arose out of 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 plaintiff as to the identity of the proper parties,

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