Calendar Date: June 6, 2017
Offices of J. David Burke, Schenectady (J. David Burke of
counsel), for appellant.
Offices of Theresa Puleo, Albany (Murry S. Brower of
counsel), for respondent.
Before: McCarthy, J.P., Garry, Lynch, Rose and Devine, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (O'Connor, J.),
entered February 8, 2016 in Albany County, which granted a
motion by defendant Rytec Corporation to dismiss the third
amended complaint against it.
August 1, 2014, three days before the statute of limitations
was to expire, plaintiff commenced this action to recover for
injuries he allegedly sustained in August 2011 when an
overhead door fell from a raised position and struck him
(see CPLR 214). Within his initial complaint,
plaintiff designated the corporate entities "who
designed, manufactured, sold, distributed, assembled,
installed, maintained, repaired and/or serviced the overhead
door, " as John Does Nos. 4 through 6. On June 4,
2015, plaintiff filed a third amended complaint identifying
defendant Rytec Corporation as John Doe No. 5. Rytec
thereafter filed a pre-answer motion to dismiss the complaint
against it on the ground that the claim was barred by the
statute of limitations. Plaintiff opposed, asserting that he
had adhered to the procedure set out by CPLR 1024, which
allowed the filing of the third amended complaint to relate
back to the date that the original complaint was filed -
before the statute of limitations expired. In reply, Rytec
argued that plaintiff had not adhered to the requirements of
this provision, as he had not demonstrated due diligence in
attempting to learn its identity. Supreme Court granted
Rytec's motion. Plaintiff appeals.
statutory provision allowing commencement of an action
against unknown parties does not toll the statute of
limitations (see CPLR 1024; Kaczmarek v
Benedictine Hosp., 176 A.D.2d 1183, 1183-1184 ;
Green v County of Fulton, 123 A.D.2d 88, 90 ).
As Supreme Court held, plaintiff was required to serve all
parties within 120 days of filing, or seek leave to extend
the time for service "upon good cause shown or in the
interest of justice" (CPLR 306-b; see Bumpus v New
York City Tr. Auth., 66 A.D.3d 26, 31 ). Here,
plaintiff failed to seek leave to extend the time for service
prior to expiration of the statutory limitations period.
a party seeking to apply the relation-back doctrine under
CPLR 1024 carries the burden "of establishing that
diligent efforts were made to ascertain the unknown
party's identity prior to the expiration of the statute
of limitations" (Holmes v City of New York, 132
A.D.3d 952, 954 ; see Goldberg v Boatmax://,
Inc., 41 A.D.3d 255, 256 ; Luckern v Lyonsdale
Energy Ltd. Partnership, 229 A.D.2d 249, 253 )
third amended complaint was filed nearly 10 months after the
statute of limitations expired, with the delay essentially
unexplained but for a statement that Rytec's identity
could not be ascertained until the door was inspected in May
2015. There was no effort to explain any basis for the
precommencement delay, and no discussion relative to any of
the potential additional discovery efforts that might or
could have been undertaken prior to the expiration of the
limitations period (see Temple v New York Community Hosp.
of Brooklyn, 89 A.D.3d 926, 928 ; Hall v
Rao, 26 A.D.3d 694, 695 ; compare U.S. Bank
N.A. v Losner, 145 A.D.3d 935, 937 ; Luckern v
Lyonsdale Energy Ltd. Partnership, 229 A.D.2d at 254).
we find that Supreme Court properly granted Rytec's
motion to dismiss the third amended complaint against it, as
it was barred by the statute of limitations (see Holmes v
City of New York, 132 A.D.3d at 954; Temple v New
York Community Hosp. of Brooklyn, 89 A.D.3d at 928;
compare Henderson-Jones v City of New York, 87
A.D.3d 498, 506 ).
McCarthy, J.P., Lynch, Rose and Devine, JJ., concur.
that the order is ...