Pollock v. Rengasamy
| Decision Date | 18 May 2022 |
| Docket Number | Index No. EC2020-32138 |
| Citation | 2022 NY Slip Op 22160 |
| Parties | Terry L. Pollock, Plaintiff, v. Balamurugan Rengasamy and PV HOLDING CORP., GLOBALFOUNDRIES U.S. INC., and JOHN DOE or JANE DOE COMPANY, a company who was the employer of, defendant BALAMURUGAN RENGASAMY, Defendants. |
| Court | Washington Supreme Court |
O'Connor First, P.C., Albany (Joseph T. Perkins of counsel), for plaintiff.
Harris Beach PLLC, Syracuse (Brian D. Roy of counsel), for defendants Balamurugan Rengasamy and PV Holding Corp.
Lewis Brisbois Bisgaard & Smith LLP, New York (John A. Anselmo of counsel), for defendant Applied Materials, Inc.
On the evening of October 13, 2017, defendant Balamurugan Rengasamy was driving a vehicle owned by defendant PV Holding Corp. (hereinafter PV Holding) on Stonebreak Road Extension in the Town of Malta, Saratoga County, when he rear-ended a vehicle owned and operated by plaintiff. This personal injury action was later commenced on October 9, 2020.
Plaintiff alleges That being said, the Secretary of State was served as attorney-in-fact for Rengasamy on October 13, 2020 (see Vehicle and Traffic Law § 253 [1]). [1] Corporation Service Company was served as registered agent for PV Holding on that same date (see Business Corporation Law § 305 [a]).
On December 28, 2020, plaintiff filed an amended summons and complaint which also named as defendants "GlobalFoundries U.S. Inc. and John Doe or Jane Doe Company, a company who was the employer of defendant Balamurugan Rengasamy." Corporation Service Company was then served as registered agent for GlobalFoundries U.S. Inc. (hereinafter GlobalFoundries) on February 24, 2021 (see Vehicle and Traffic Law § 305 [a]). GlobalFoundries subsequently served an answer with cross claim on March 22, 2021 and, on May 27, 2021, a stipulation of discontinuance was entered as against GlobalFoundries.
Meanwhile plaintiff sent copies of the amended summons and complaint to Applied Materials, Inc. (hereinafter Applied) on March 30 2021, advising the company that it "is the John Doe Company set forth in the complaint; as at the time [the complaint] was filed [plaintiff] did not know the proper corporate name of the employer." Plaintiff then served the Secretary of State as agent for Applied on April 1, 2021 (see Business Corporation Law § 306). On May 18, 2021 counsel for Applied requested an extension of time in which to answer, with a 60-day extension granted by counsel for plaintiff. Presently before the Court is (1) Applied's pre-answer motion to dismiss the action as against it based upon expiration of the statute of limitations (see CPLR 3211 [a] [5]); and (2) plaintiff's cross motion for leave to file and serve a second amended complaint, nunc pro tunc (see CPLR 3025 [b]).
Turning first to Applied's motion to dismiss, under CPLR 214 (5) a three-year statute of limitations applies to personal injury actions. Applied contends that, because the car accident occurred on October 13, 2017, the statute of limitations expired on October 13, 2020 - prior to the date of filing of the amended summons and complaint naming John or Jane Doe Company.
Applied further contends that the pleadings were not properly amended in any event. In this regard, CPLR 3025 (a) provides that "[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it." According to Applied, the summons and complaint were served on Rengasamy and PV Holding on October 13, 2020 and, to date, no answer has been served. As a result, the last day upon which to amend the pleading without leave of court was November 2, 2020 - almost two months prior to the date of filing of the amended summons and complaint.
In opposition, plaintiff contends that the statute of limitations was tolled by a series of executive orders issued by former Governor Andrew Cuomo as a result of the COVID-19 pandemic. More specifically, plaintiff contends that the statute of limitations was tolled from March 20, 2020, when the first executive order was issued, to November 3, 2020 when the last executive order expired - for a total of 228 days. As such, according to plaintiff the statute of limitations expired on June 5, 2021 - not October 13, 2020.
Plaintiff fails to proffer any argument in her papers as to why filing of the amended summons and complaint was proper, instead stating that "[i]n an abundance of caution, [she] has submitted a cross-motion to file a second amended complaint nunc pro tunc which specifically names Applied... as a named defendant." That being said, during oral argument on May 2, 2022 counsel for plaintiff argued that filing of the amended summons and complaint on December 28, 2020 was proper because counsel for Rengasamy and PV Holding had emailed requesting an extension of time to answer and as such, the period of time for responding had not yet expired. The Court requested a copy of this email and then provided counsel for Applied with an opportunity to respond. [2]
At the outset, the Court finds that the statute of limitations was tolled for a period of 228 days. In Brash v Richards (195 A.D.3d 582 [2021]) (hereinafter Brash), the Appellate Division, Second Department found that "the subject executive orders tolled the time limitation[s]" contained in the CPLR (id. at 585), and that the Governor was authorized under Executive Law § 29-a (2) (d) to toll these time limitations (see id. at 584-585). Applied contends that this Court is not bound by the decision in Brash but - because no other Appellate Division has issued a decision on the issue - Applied is incorrect (see Mountain View Coach Lines v Storms, 102 A.D.2d 663, 664 [1984]). That being said, the Court notes that 228 days from October 13, 2020 is May 31, 2021 - not June 5, 2021. The statute of limitations thus expired on May 31, 2021.
The Court further finds that filing of the amended summons and complaint on December 28, 2020 without leave of court was improper. More than 20 days had passed since service of the summons and complaint on Rengasamy and PV Holding, with no responsive pleadings having been served. Moreover, no extension of time to answer had been requested at the time of filing of the amended summons and complaint. In this regard, the email submitted by counsel for plaintiff after oral argument demonstrates that he was not contacted by counsel for Rengasamy and PV Holding until January 27, 2021 - nearly one month after filing of the amended summons and complaint. In the email - sent in follow up to a telephone call that same day - counsel for Rengasamy and PV Holding confirms that he "has just been contacted in [the] matter" and "appreciate[s counsel for plaintiff] granting [him] 14 days... to appear and respond" to the amended summons and complaint. [3]
Under the circumstances, the Court finds that the requirements of CPLR 3025 (a) were not satisfied. Plaintiff should have made a motion pursuant to CPLR 3025 (b) for leave to file the amended summons and complaint. That being said, the Court now turns to the cross motion.
According to plaintiff, she is entitled to file a second amended complaint naming Applied as a defendant notwithstanding that the statute of limitations expired on May 31, 2021. In this regard, plaintiff contends that "Applied... and its attorneys were aware of the occurrence out of which the lawsuit arose well before [the statute of limitations expired], and cannot claim any prejudice or surprise which would prevent... application of CPLR 203 (f), New York's 'relation-back' doctrine."
The relation back doctrine permits a plaintiff to amend a complaint to add a defendant even though the statute of limitations has expired at the time of amendment so long as the plaintiff can demonstrate three things: "(1) that the claims arose out of the same occurrence, (2) that the later-added [defendant] is united in interest with a previously named [defendant], and (3) that the later-added [defendant] knew or should have known that, but for a mistake by [plaintiff] as to the later-added [defendant's] identity, the proceeding would have also been brought against him or her" (Koplinka-Loehr v County of Tompkins, 189 A.D.3d 2039, 2042 [2020], quoting Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 A.D.3d 1518, 1519-1520 [2017] [citations omitted], lv denied 30 N.Y.3d 906 [2017]; accord Matter of Sullivan County Patrolmen's Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 179 A.D.3d 1270, 1271 [2020]; see CPLR 203 [f]; Buran v Coupal, 87 N.Y.2d 173, 178 [1995]). Significantly, plaintiff bears "the burden of 'show[ing] that the action [is] permitted to continue under the relation back doctrine'" (Fasce v Smithem, 188 A.D.3d 1542, 1543 [2020], quoting Branch v Community Coll. of the County of Sullivan, 148 A.D.3d 1410, 1410 [2017], lv denied 29 N.Y.3d 911 [2017]; see NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 167 A.D.3d 1305, 1307 [2018]).
Here there is no question that the claims against Applied arose out of the same occurrence, namely the October 2017 car accident. Plaintiff has therefore satisfied the first prong of the inquiry. The second prong, however, is more problematic. Plaintiff alleges that Rengasamy was an employee of Applied at the time of the accident and, further, that the accident occurred in the course of his employment with Applied. While plaintiff has not submitted any evidentiary proof in support of these allegations, Applied has not denied them. Assu...
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