SHAREN BRANCH, as Administrator of the Estate of ROBERT BASTIAN, Deceased, Appellant,
COMMUNITY COLLEGE OF THE COUNTY OF SULLIVAN, Respondent.
Calendar Date: January 18, 2017
Sussman & Watkins, Goshen (Michael H. Sussman of
counsel), for appellant.
Office of Thomas K. Moore, White Plains (Norah M. Murphy of
counsel), for respondent.
Before: Garry, J.P., Lynch, Devine and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Schick, J.), entered
February 9, 2016 in Sullivan County, which granted
defendant's motion to dismiss the complaint.
Bastian (hereinafter decedent) was a student at defendant
and, in November 2007, he suffered a fatal heart attack in a
campus dormitory. Plaintiff, decedent's mother, brought
suit against the County of Sullivan in 2009, seeking to
recover for its alleged negligence. Supreme Court (Melkonian,
J.) dismissed that action upon the ground that the County did
not own the dormitory or otherwise exercise control over it
and, as such, owed no duty of care to decedent. This Court,
and then the Court of Appeals, affirmed (see Branch v
County of Sullivan, 112 A.D.3d 1119');">112 A.D.3d 1119 ,
affd 25 N.Y.3d 1079');">25 N.Y.3d 1079 ).
the dismissal of the action against the County was affirmed
by the Court of Appeals in 2015, plaintiff commenced the
present action seeking similar relief against defendant.
Following joinder of issue, defendant moved to dismiss the
complaint as barred by the statute of limitations
(see EPTL 5-4.1 ). Plaintiff responded by arguing
that the relation back doctrine applied (see CPLR
203). Supreme Court (Schick, J.) disagreed and granted the
motion, prompting this appeal by plaintiff.
is no dispute that the statute of limitations expired before
this action was commenced and, as a result, the burden rested
on plaintiff to show that the action was permitted to
continue under the relation back doctrine (see
Ahrorgulova v Mann, 144 A.D.3d 953, 955 ;
Kaczmarek v Benedictine Hosp., 176 A.D.2d 1183, 1184
). It is not clear that the relation back doctrine,
which "allows a claim asserted against a defendant in an
amended filing to relate back to claims previously asserted
against a codefendant for [s]tatute of [l]imitations purposes
where the two defendants are 'united in interest,
'" applies to claims asserted in a new and
independent action (Buran v Coupal, 87 N.Y.2d 173,
177 , quoting CPLR 203 [b]; see CPLR 203 [c],
[f]; Davis v Sanseverino, 145 A.D.3d 519, 520
; Alharezi v Sharma, 304 A.D.2d 414, 414-415
; cf. Cazsador v Greene Cent. School, 243
A.D.2d 867, 869 , lv denied 91 N.Y.2d 812');">91 N.Y.2d 812
) . Regardless, the claim against
defendant will only relate back to the earlier one against
the County if three requirements are met: "(1) both
claims must arise out of the same occurrence, (2) defendant
and [the County] were united in interest, and by reason of
that relationship can be charged with notice of the
institution of the action such that it will not be prejudiced
in maintaining a defense on the merits, and (3) defendant
knew or should have known that, but for a mistake by
plaintiff as to the identity of the proper party, the action
[against the County] would have been brought against it as
well" (Mongardi v BJ's Wholesale Club,
Inc., 45 A.D.3d 1149, 1150 ; see McLaughlin v
22 New Scotland Ave., LLC, 132 A.D.3d 1190, 1193
first prong of that test was indisputably met. Assuming
without deciding that the second was as well, the third was
not in that plaintiff's failure to timely commence an
action against defendant "was not the result of a
mistake or an inability to identify the correct defendant
within the applicable limitations period" (Contos v
Mahoney, 36 A.D.3d 646, 647 ). Plaintiff was well
aware that defendant maintained the dormitory where decedent
died and, in December 2007, the notice of claim she served
upon the County (and additionally mailed to defendant) stated
as much. She nevertheless elected to commence an action
against the County alone in the belief that defendant
"was a department of the County." Defendant is not,
and a failure to appreciate that defendant was a legally
required party is not the type of mistake contemplated by the
relation back doctrine (see Matter of Ayuda Re
Funding, LLC v Town of Liberty, 121 A.D.3d 1474, 1476 ;
Windy Ridge Farm v Assessor of Town of Shandaken, 45
A.D.3d 1099, 1099-1100 , affd 11 N.Y.3d 725');">11 N.Y.3d 725
). Plaintiff accordingly failed to demonstrate that the
relation back doctrine applied and, thus, Supreme Court
properly dismissed the complaint as time-barred.
J.P., Lynch and Mulvey, JJ., concur.
that the order is affirmed, without costs.