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Moses v. City of New York

Other Lower Courts

January 9, 2008

Jamar Moses, Plaintiff,
v.
The City of New York, CONSOLIDATED EDISON OF NEW YORK, INC., CABLEVISION SYSTEMS NEW YORK CITY CORPORATION, TROCOM CONSTRUCTION CORP., AZETAKE CONSTRUCTION CORP., GDY PROPERTIES, INC., KEYSPAN ENERGY DELIVERY N.Y.C., MATTHEW RUGGIERO PLUMBING CORP., VALES CONSTRUCTION CORP., H2O WATERMAINS SEWER INC., R.M. DEVELOPMENT CONSTRUCTION LLC, TRI-BORO PLUMBING HEATING CORP., BROWN PLUMBING HEATING, INC., AND RAYTONE PLUMBING SPECIALTIES INC., Defendants.

Editorial Note:

This case is not published in a printed volume and its disposition appears in a table in the reporter.

COUNSEL

Plaintiff was represented by Robert J. Berkowitz, Esq. of Eiges, Goldblum Berkowitz, LLP.

Defendant Vales was represented by Norman H. Dachs, Esq. of Shayne, Dachs, Corker, Sauer Dachs, LLP.

Defendant Trocom Construction Corporation was represented by Kevin S. Locke, Esq. of French Rafter, LLP.

OPINION

Jack M. Battaglia, J.

A defendant who does not, within the applicable statute of limitations, object to the plaintiff's joinder of the defendant without leave of court, but instead answers the plaintiff's complaint and participates in disclosure, cannot, after the expiration of the limitations period, effectively make the objection in an amended answer.

On February 24, 2004, Plaintiff allegedly sustained personal injuries when he fell in the roadway at the northeast corner of Ralph Avenue and Prospect Place in Brooklyn. On January 26, 2005, Plaintiff commenced a personal injury action without naming defendant Vales as a defendant. On March 15, 2006, without seeking leave of court, Plaintiff filed an Amended Summons and Amended Verified Complaint adding Vales as a defendant. On November 7, 2006 (prior to expiration of the statute of limitations), Vales served an Answer to the Amended Verified Complaint along with various discovery demands. On March 27, 2007 (after the expiration of the statute of limitations), without seeking leave of court, Vales served a Verified Amended Answer asserting for the first time an affirmative defense that "plaintiff added VALES CONSTRUCTION CORP. as a party defendant in a manner that was not in compliance with CPLR 1003."

In its motion, Vales contends that Plaintiff's Amended Verified Complaint should be dismissed as against it because Plaintiff failed to obtain leave of court before serving the Amended Summons and Amended Verified Complaint, joining it as an additional defendant in violation of CPLR 1003. ( See e.g. Yadegar v International Food Market, 306 A.D.2d 526, 526 [2d Dept 2003].) CPLR 1003 provides in pertinent part:

"Parties may be added at any stage of the action by leave of court or by stipulation of all parties who have appeared, or once without leave of court within twenty days after service of the original summons or at anytime before the period for responding to that summons expires or within twenty days after service of a pleading responding to it."

Here, it is undisputed that Plaintiff did not obtain a stipulation signed by all parties, and did not timely amend his pleadings as of right. As such, "[t]he joinder of an additional defendant by the filing of a supplemental summons and amended complaint may be accomplished only with prior judicial permission, and noncompliance renders the pleadings jurisdictionally defective." ( Perez v Paramount Communications, Inc., 92 N.Y.2d 749, 753 [1999]; see also Yadegar v International Food Market, 306 A.D.2d at 526; Dauernheim v Lendlease Cars, Inc., 202 A.D.2d 624, 625 [2d Dept 1994].) "Generally, unless there has been a waiver, the failure to obtain leave of the court constitutes a jurisdictional defect requiring dismissal of the action against the party so joined." ( Crair v Brookdale Hosp. Med. Ctr., 259 A.D.2d 586, 589 [2d Dept 1999]; see also Dauernheim v Lendlease Cars, Inc., 202 A.D.2d at 625 ["[j]oinder of a new party defendant without court approval is a nullity unless waived by the new party."].)

In opposition, Plaintiff concedes that he failed to obtain leave of court prior to serving his Amended Summons and Amended Verified Complaint upon Vales in violation of CPLR 1003. Plaintiff contends, however, that Vales waived the "jurisdictional defect" by participating in disclosure proceedings, and failing to object prior to the expiration of the statute of limitations.

"Although a court order is required to add a new party to an action, and the failure to obtain such generally renders service on the new party a nullity, nevertheless, a failure to obtain leave of court may be waived and is not fatal in all cases [citations omitted]." ( Santopolo v Turner Construction Co.,181 A.D.2d 429, 429 [1st Dept 1992]; Gross v BFH Co., Inc.,151 A.D.2d 452, 452 [2d Dept 1989].) A defendant waives the "jurisdictional defect" of improper joinder where the defendant answers the amended complaint without raising an objection to the improper joinder, and then delays until after the limitations period has run before moving to dismiss. (See Tarallo v Gottesman,204 A.D.2d 303, 303 [2d Dept 1994]; Santopolo v Turner Construction Co., 181 A.D.2d at 429; Gross v BFH Co., Inc., 151 A.D.2d at 452; McDaniel v Clarkstown Central District No. 1,83 A.D.2d 624, 625 [2d Dept 1981]; compare Public Administrator of Kings County v McBride,15 A.D.3d 558, 559 [2d Dept 2005].) Conversely, a defendant does not waive the "jurisdictional defect" of improper joinder ...


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