Parker v. Port Authority of New York and New Jersey

• Decision Date: 03 September 1985
• Citation: 113 A.D.2d 763,493 N.Y.S.2d 355
• Parties: In the Matter of John PARKER, et al., Respondents, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 355

493 N.Y.S.2d 355

113 A.D.2d 763

In the Matter of John PARKER, et al., Respondents, v. The PORT AUTHORITY OF NEW YORK AND NEW JERSEY, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Sept. 3, 1985.

Patrick J. Falvey, New York City (Arthur P. Berg and Jay A. Selcov, New York City, on brief), for appellant The Port Authority of New York and New Jersey.

Singer Netter & Dowd, New York City (Edward M. Berman, New York City, on brief), for appellant Edward Nowakowski.

Simon, Newman & Brook, Forest Hills (Richard E. Brook, Forest Hills, on brief), for respondents.

Before GIBBONS, J.P., and THOMPSON, BROWN and WEINSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for assault, false arrest, and malicious prosecution, defendants the Port Authority of New York and New Jersey (Port Authority) and Police Officer Edward Nowakowski appeal, as limited by their briefs, from so much of an order of the Supreme Court, Queens County, dated November 1, 1983, as denied the Port Authority's motion for summary judgment dismissing the complaint insofar as it is asserted against it, and denied, except as to the sixth cause of action, Nowakowski's motion for summary judgment dismissing the complaint insofar as it is asserted against him.

Order modified, on the law, by granting the Port Authority's motion for summary judgment dismissing the complaint in its entirety insofar as it is asserted against it, and by granting Nowakowski's motion to the extent that the first, second, third, fifth, and seventh causes of action as against him are dismissed. As so modified, order affirmed insofar as appealed from, without costs or disbursements.

On September 23, 1979 defendant Edward Nowakowski engaged in an altercation in his apartment building with his neighbor, Kieran J. Lawlor and Lawlor's guest, John Parker. Parker and Lawlor suffered physical injuries as a result thereof. Nowakowski, a police officer for the Port Authority, was off duty when the incident giving rise to the instant action arose, and the record establishes as a matter of law that when defendant Nowakowski allegedly engaged in his tortious behavior he was acting outside the scope of hi employment (Fuller v. City of Yonkers, 100 A.D.2d 926, 474 N.Y.S.2d 813 (1984); Stavitz v. City of New York, 98 A.D.2d 529, 471 N.Y.S.2d 272 (1984)). There is also nothing in the record to indicate that the Port Authority acted negligently in hiring Nowakowski. Accordingly, the Port Authority is entitled to summary judgment dismissing the complaint insofar as it is asserted against it.

Plaintiffs commenced the instant action by serving the Port Authority with a summons and complaint on July 31, 1980. Nowakowski was served by "nail and mail" service in August 1980, but this service was subsequently invalidated. Nowakowski was properly served on December 22, 1980. The complaint alleges causes of action against Nowakowski to recover damages for assault, false arrest, malicious prosecution, and the intentional infliction of emotional distress.

Nowakowski moved for summary judgment dismissing the causes of action pleaded against him based upon the Statute of Limitations. Plaintiffs argue that the motion should be denied because service upon the Port Authority, Nowakowski's employer, prevented the Statute of Limitations from expiring against Nowakowski, who was united in interest with the Port Authority (see, CPLR 203[b]; Connell v. Hayden, 83 A.D.2d 30, 443 N.Y.S.2d 383 (1981). The issue squarely presented by this case is whether an employee will be considered united in interest with his employer for Statute of Limitations purposes (CPLR 203[b] ) when it is determined as a matter of law that the employee's allegedly tortious conduct was committed outside the scope of his employment. If the jural relationship between an employer and an employee necessary to create a unity of interest does not exist as a matter of law at the time the employee engages in allegedly tortious conduct, so that, as a matter of law, the employee did not act within the scope of his employment, then service of process upon the employer will not stop the Statute of Limitations from continuing to run as to causes of action which have accrued against the employee, until such time as the employee is properly served.

In Connell v. Hayden, supra, at p. 41, 443 N.Y.S.2d 383, this court noted:

"It thus appears that the primary purpose of Statutes of Limitation is to relieve defendants of the necessity of investigating and preparing a defense where the action is commenced against them after the expiration of the statutory period because the law presumes that by that time 'evidence has been lost, memories have faded, and witnesses have disappeared' (Telegraphers v Railway Express Agency, 321 U.S. 342, 348-349 [64 S.Ct. 582, 586, 88 L.Ed. 788 (1944) ]. In such a case the statute is an absolute bar to plaintiff's action. The united in interest language of CPLR 203 creates an exception to the foregoing rule. Where a defendant is served late, the plaintiff's claim will nevertheless be deemed interposed against him as of the earlier date upon which a codefendant united in interest with him was timely served and the Statute of Limitations will not constitute a bar to the action. The rationale behind this exception is that where the two defendants are united in interest their defenses will be the same and they will either stand or fall together with respect to plaintiff's claim. Timely service upon one of two such defendants gives sufficient notice to enable him to investigate all the defenses which are available to both defendants within the period of limitations".

Within the context of the instant situation, the rationale underlying the unity of interest rule is inapplicable. The interests of the employee who is not served will not be adequately protected because an employer who is free of vicarious liability as a consequence of its employee having, as a matter of law, acted outside the scope of his employment, is highly unlikely to conduct a sufficiently probing investigation into any additional defenses otherwise available to the employee such as would protect the employee from the hazards of lost evidence, faded memories, and disappearing witnesses. The approach adopted by the dissent does no more than place a premium on a plaintiff's ability to technically plead a unity of interest relationship, without affording adequate weight to the need to protect the rights of an employee who has, as a matter of law, acted outside the scope of his employment, to prepare a defense when he is finally served long after the expiration of the applicable Statute of Limitations. A separate potential problem area avoided by this approach entails a situation where an employer is served in bad faith, without any basis for properly alleging vicarious liability, simply because the plaintiff is unable to serve the employee and has a need to prevent the expiration of the Statute of Limitations.

Defendant Nowakowski is therefore entitled to summary judgment dismissing the claims asserted against him to recover damages for assault, false arrest, and the intentional infliction of emotional distress. There are issues of fact regarding when the cause of action to recover damages for malicious prosecution accrued, however. The record does not provide a basis for resolving the question of when the criminal proceeding against plaintiffs John Parker and Kieran Lawlor terminated. Therefore, we do not dismiss the fourth cause of action insofar as it is asserted against Nowakowski.

GIBBONS, J.P., and THOMPSON and WEINSTEIN, JJ., concur.

BROWN, J., concurs in part and dissents in part, and votes to modify the order appealed from by granting defendant Port Authority's motion for summary judgment dismissing the complaint as to it and to otherwise affirm insofar as appealed from, with the following memorandum:

There is no dispute between myself and my colleagues as to the granting of summary judgment in this case in favor of defendant Port Authority. The record is clear that, as a matter of law, the acts complained of occurred outside the scope of defendant Nowakowski's employment. Where I disagree with the majority, however, is over the application of CPLR 203(b)--the unity of interest rule--to the facts of this case in determining whether the action was timely commenced against the individual defendant. The majority concludes that because it has now been determined as a matter of law that the Port Authority is not vicariously liable for its employee's actions, the Port Authority and its employee are not united in interest, and consequently, since the service of the summons and complaint upon the employee occurred after the running of the period of limitation, the first, second, third, fifth and seventh causes of action were time barred as to him. I would hold to the contrary.

The unity of interest rule is an aspect of rules of practice for calculating the periods of limitation in civil actions and proceedings set forth in CPLR 203. In general, the time within which an action must be commenced is to be computed from the time the cause of action accrued to the time the claim is interposed (CPLR 203[a] ). CPLR 203(b) provides that "[a] claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with him when * * * the summons is served upon the defendant" (emphasis added). It is this latter provision that is the basis of the unity of interest rule. The effect of the rule simply stated is that if a claim is timely interposed against one of two or more named codefendants united in interest, it will be deemed to be interposed at the same time against all of the named defendants and thus will terminate the running of the period of limitations as to the remaining named defendants and deprive them of the defense of the Statute of Limitations. Put another...