Sanna v. Rockefeller Center, Inc.
| Decision Date | 01 July 2004 |
| Docket Number | 95286. |
| Citation | 9 A.D.3d 596,780 N.Y.S.2d 651,2004 NY Slip Op 05733 |
| Parties | E. SUSAN DE SANNA, Respondent, v. ROCKEFELLER CENTER, INC., Now Known as ROCKEFELLER GROUP, INC., et al., Defendants, and ROCKEFELLER CENTER NORTH, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Plaintiff was injured on March 17, 1999 as she was exiting a freight elevator in premises located at 1271 Avenue of the Americas in New York City. In July 2001, plaintiff commenced a personal injury action against Rockefeller Group, Inc., believing it to be the owner of said premises, and Rockefeller Center Management Corporation (RCMC) as its management company. As both entities maintained offices at 1221 Avenue of the Americas for service of process, plaintiff mistakenly identified the situs of the accident in the complaint as 1221 Avenue of the Americas. After discovery confirmed that the accident took place at 1271 Avenue of the Americas, defendants moved for summary judgment; plaintiff discontinued the action.
On April 10, 2002, plaintiff commenced this action against "Rockefeller Center, Inc., now known as Rockefeller Group Inc. and Rockefeller Center Management Corporation now known as Rockefeller Group Development Corporation." The accompanying complaint identified the situs of the accident correctly, but both Rockefeller Group Development Corporation (hereinafter RGDC) and Rockefeller Group, Inc. (hereinafter RGI) denied managing or owning 1271 Avenue of the Americas. Plaintiff filed an amended summons in August 2002 additionally naming defendant Rockefeller Center North, Inc. (hereinafter RCN). After RCN demanded a complaint, plaintiff filed an amended complaint alleging that RCN was, in fact, the owner and manager of 1271 Avenue of the Americas. RCN moved to dismiss the complaint as time-barred pursuant to CPLR 3211 (a) (5) or, in the alternative, pursuant CPLR 3025, for the failure to have secured leave of court before amending the pleadings. Plaintiff cross-moved to file an amended summons nunc pro tunc, which all defendants opposed. Supreme Court, by order entered April 7, 2003 and clarified by order entered August 22, 2003, granted plaintiff's cross motion and RCN appeals.1
By not dismissing the complaint as untimely, Supreme Court permitted plaintiff to utilize the benefits of the relation back doctrine, codified in CPLR 203. It permits a plaintiff to amend a complaint and add a new defendant even though, at the time of amendment, the statute of limitations would have expired. To receive its benefits, three conditions must be satisfied: "`(1) both claims [must arise] 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 [or she] will not be prejudiced in maintaining [a] 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, the action would have been brought against him [or her] as well'" (Buran v Coupal, 87 NY2d 173, 178 [1995], quoting Brock v Bua, 83 AD2d 61, 69 [1981] [citations omitted]).2
There was no dispute that the first condition was easily satisfied—the claims arose out of the same occurrence. RCN focused on the second condition and asserted that plaintiff failed to demonstrate that it is united in interest with the other defendants. We disagree. Parties are united in interest when "`the interest of the parties in the subject-matter is such that they [will] stand or fall together and that judgment against one will similarly affect the other'" (Quine v Burkhard Bros., 167 AD2d 683, 684 [1990], quoting Prudential Ins. Co. v Stone, 270 NY 154, 159 [1936]). A unity of interest has been found to exist where "the defenses available . . . will be identical, [which occurs] . . . where one is vicariously liable for the acts of the other" (Connell v Hayden, 83 AD2d 30, 45 [1981]). Here, through plaintiff's testimony and later discovery, it was revealed that shortly after the accident, plaintiff was...
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