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Branch v. Community College of County of Sullivan

Supreme Court of New York, Third Department

March 16, 2017

SHAREN BRANCH, as Administrator of the Estate of ROBERT BASTIAN, Deceased, Appellant,

          Calendar Date: January 18, 2017

          Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for appellant.

          Law Office of Thomas K. Moore, White Plains (Norah M. Murphy of counsel), for respondent.

          Before: Garry, J.P., Lynch, Devine and Mulvey, JJ.


          Devine, J.

         Appeal 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.

         Robert 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 [2013], affd 25 N.Y.3d 1079');">25 N.Y.3d 1079 [2015]).

         After 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 [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.

         There 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 [2016]; Kaczmarek v Benedictine Hosp., 176 A.D.2d 1183, 1184 [1991]). 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 [1995], quoting CPLR 203 [b]; see CPLR 203 [c], [f]; Davis v Sanseverino, 145 A.D.3d 519, 520 [2016]; Alharezi v Sharma, 304 A.D.2d 414, 414-415 [2003]; cf. Cazsador v Greene Cent. School, 243 A.D.2d 867, 869 [1997], lv denied 91 N.Y.2d 812');">91 N.Y.2d 812 [1998]) [1]. 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 [2007]; see McLaughlin v 22 New Scotland Ave., LLC, 132 A.D.3d 1190, 1193 [2015]).

         The 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 [2007]). 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 [2014]; Windy Ridge Farm v Assessor of Town of Shandaken, 45 A.D.3d 1099, 1099-1100 [2007], affd 11 N.Y.3d 725');">11 N.Y.3d 725 [2008]). Plaintiff accordingly failed to demonstrate that the relation back doctrine applied and, thus, Supreme Court properly dismissed the complaint as time-barred.

          Garry, J.P., Lynch and Mulvey, JJ., concur.

         ORDERED that the order is affirmed, without costs.


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