State v. Gruzen Partnership
Decision Date | 15 May 1997 |
Parties | STATE of New York, Appellant, v. GRUZEN PARTNERSHIP, Respondent, et al., Defendant. (And Two Third-Party Actions.) |
Court | New York Supreme Court — Appellate Division |
Page 830
v.
GRUZEN PARTNERSHIP, Respondent, et al., Defendant.
(And Two Third-Party Actions.)
Third Department.
Dennis C. Vacco, Attorney-General (Paul J. Hyams, of counsel), Albany, for appellant.
Gogick & Seiden (Michael J. Byrne, of counsel), New York City, for respondent.
Before MIKOLL, J.P., and CREW, CASEY, PETERS and CARPINELLO, JJ.
CREW, Justice.
Appeal from an order of the Supreme Court (Teresi, J.), entered July 24, 1996 in Albany County, which, inter alia, denied plaintiff's motion to reargue a prior order denying plaintiff leave to amend its complaint to add party defendants.
In January 1981, plaintiff entered into a contract with defendant Gruzen Partnership to provide design services in connection with the construction of a State correctional facility. Thereafter, in 1991, plaintiff commenced this action against Gruzen for breach of contract. In so doing, however, plaintiff neglected to name and serve Gruzen's individual partners as party defendants. Accordingly,
Page 831
in January 1994, plaintiff moved to, inter alia, amend its complaint to assert claims against the individual partners. Supreme Court (Spain, J.) denied that portion of plaintiff's motion, finding that plaintiff's claims as to the proposed defendants were time barred and, further, that plaintiff had failed to satisfy the three-part test for application of the relation back doctrine. In March 1996, subsequent to the Court of Appeals' decision in Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978, plaintiff moved to reargue based upon an intervening change in the law. Supreme Court (Teresi, J.) denied the motion, and this appeal by plaintiff ensued.As a general rule, no appeal lies from an order denying a motion to reargue (see, Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 783, 623 N.Y.S.2d 22). "However, where * * * the court denies the motion to reargue but addresses the merits of the motion, and then adheres to its original determination, the order is appealable" (Dunham v. Hilco Constr. Co., 221 A.D.2d 586, 587, 634 N.Y.S.2d 208, revd. in part on other grounds 89 N.Y.2d 425, 654 N.Y.S.2d 335, 676 N.E.2d 1178; see, Matter of Sagona v. State Farm Ins. Co., 218 A.D.2d 660, 661, 630 N.Y.S.2d 352; Price v. Palagonia, 212 A.D.2d 765, 766, 623 N.Y.S.2d 269). In concluding that the Court of Appeals' decision in Buran v....
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...a "mistake resulting from a misapprehension" about the law is "not a mistake as to ... identity." State v. Gruzen Partnership , 239 A.D.2d 735, 736, 657 N.Y.S.2d 830 (N.Y. App. Div. 1997).These decisions produce a patchwork of conflicting rules about when relation back should be permitted, ......
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...302 A.D.2d 155, 165 [1st Dept 2002]; Somer & Wand v Rotondi, 251 A.D.2d 567, 569 [2d Dept 1998]; State of New York v Gruzen Partnership, 239 A.D.2d 735, 736 [3rd Dept 1997]). In petitioners' view, because our state's relation back test was largely premised upon Federal Rules of Civil Proced......
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... ... Inc., 45 A.D.3d 1149, 1151 [2007]). Under the ... established law of this state, any "mistake" here ... would "not [be one] contemplated by the relation back ... & Wand v Rotondi, 251 A.D.2d 567, 569 [2d Dept ... 1998]; State of New York v Gruzen Partnership, 239 ... A.D.2d 735, 736 [3rd Dept 1997]). In petitioners' view, ... ...
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