Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Flederbach v. Fayman

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT


December 2, 2008

WENDY FLEDERBACH, ET AL., APPELLANTS,
v.
YVACHESLAV FAYMAN, ET AL., DEFENDANTS; CHASE MANHATTAN AUTOMOTIVE FINANCE CORP., ET AL., NONPARTY-RESPONDENTS.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated June 1, 2007, which denied their motion for leave to serve a supplemental summons and amended complaint adding Chase Manhattan Automotive Finance Corp. and Chase Auto Finance Corp. as party defendants.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., ROBERT A. LIFSON, FRED T. SANTUCCI & EDWARD D. CARNI, JJ.

(Index No. 27369/03)

DECISION & ORDER

ORDERED that the order is affirmed, without costs or disbursements.

The plaintiff Wendy Flederbach was injured in an accident with a vehicle operated by the defendant Yvacheslav Fayman. The police accident report identified the owner of the offending vehicle as Irina Fayman, who also was named as a defendant in this action to recover damages for personal injuries brought by Flederbach and her husband, derivatively. At his deposition conducted more than three years after the accident, Yvacheslav Fayman testified that he leased the offending vehicle from Chase Manhattan Automotive Finance Corp., now known as Chase Auto Finance Corp. (hereinafter together Chase).

The plaintiffs moved for leave to serve a supplemental summons and amended complaint adding Chase as defendant to the action, contending, inter alia, that the claim against Chase related back to the timely-asserted claim against the operator of the offending vehicle, with whom Chase was united in interest. The motion was denied based upon this Court's holding in Jones v Bill (34 AD3d 741), because, although this action was commenced prior to the enactment of 49 USC § 30106 (the Graves Amendment), which abolished vicarious liability of automobile lessors for the negligence of the operators of leased vehicles in actions commenced after its enactment on August 10, 2005, the motion for leave to serve a supplemental summons and amended complaint adding Chase as a defendant was made after the August 10, 2005, effective date. Thereafter, however, Jones v Bill (34 AD3d 741) was reversed by the Court of Appeals, which held that the Graves Amendment only applies to actions commenced by the filing of the initial summons and complaint after its enactment date, and did not bar vicarious liability claims against vehicle lessors asserted in an amended pleading in an action commenced prior to its effective date (see Jones v Bill, 10 NY3d 550).

The plaintiffs are correct, therefore, that their motion is not barred by the Graves Amendment, since this action was commenced prior to the effective date of that statute. Nonetheless, we affirm the order denying the motion, on the ground that the claim against Chase is barred by the statute of limitations. The plaintiffs argue that the claim against Chase relates back to the timely- commenced action against the operator of the offending vehicle. However, the plaintiffs failed to meet their burden of proving that the relation-back doctrine is applicable, since there is no evidence that Chase knew or should have known that, but for a mistake on the part of the plaintiff, it would have been named in the action as well (see Buran v Coupal, 87 NY2d 173). Indeed, there is no evidence that Chase was aware of the accident, much less the lawsuit, within the limitations period (see Williams v Majewski, 291 AD2d 816; compare Porter v Annabi, 38 AD3d 869). Since notice within the limitations period is "the 'linchpin' of the relation back doctrine" (Buran v Coupal, 87 NY2d 173, 180), the denial of the plaintiffs' motion for leave to serve a supplemental summons and amended complaint adding Chase as a defendant to the action was correct.

SKELOS, J.P., LIFSON, SANTUCCI and CARNI, JJ., concur.

20081202

© 1992-2008 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.