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Roig v. Queens Surface Corp.11/10/2003
This opinion is uncorrected and will not be published in the Official Reports. Limitation of Actions--Claim in Amended Pleading
(*1)
July 18, 2003
DECISION/ORDER
The following documents were considered in reviewing the motion by plaintiffs seeking leave to amend the complaint to add a claim:
Numbered
| 1, 2 (exhibits)
| 3 (exhibits)
| 4
|
(*2) Plaintiffs commenced this action to recover money damages for personal injuries sustained during an accident occurring in October, 1999. At the time, plaintiffs rode as passengers in a bus owned by defendant Queens Surface Corp. and operated by its employee. Plaintiffs now moves for court leave to amend the summons and complaint to add a cause of action for negligent hiring and retention.
Defendant opposes the motion on the ground that the claim is barred by the statute of limitations. It appears that the claim is time-barred since the period of limitation applicable to a claim of negligent hiring and retention of an alleged incompetent employee is three years. See CPLR 214; Slavon v. Reverend, 244 A.D.2d 878 (4th Dept. 1997). Plaintiff, however, counters that the additional claim is timely because it relates back to the claim timely commenced. Discussion
Section 203(f) is the CPLR's relation back statute. It provides that for statute of limitations purposes a claim in an amended pleading will be deemed to relate back to the time the claim in the original pleading was interposed as long as the original claim gives notice of the transaction or occurrence out of which the claim in the amended pleading arises. See, Bank of New York v. Midland Avenue Development Co., 248 A.D.2d 342 (2d Dept. 1998); Coleman, Grasso and Zasada Appraisals, Inc. v. Coleman, 246 A.D.2d 893 (3d Dept. 1998). Thus, where a claim was timely commenced against a defendant, the assertion of an otherwise time-barred claim in an amended pleading is permitted where the original pleading gave notice of the transaction or occurrence to be proved. (*3) Where an original pleading gives notice of a particular transaction or occurrence, the statute of limitations is tolled on all causes of action arising out of that transaction or occurrence regardless of the legal theory. Pennzoil v. Carlson, 158 A.D.2d 206 (4th Dept. 1990); Palmer v. New York City Transit Authority, 37 A.D.2d 766 (1st Dept. 1971). New claims of relief may be presented or relief sought if they are based on the same conduct or transactions already pleaded. Pennzoil v. Carlson, supra; McCormack v. Mount Sinai Hospital, 85 A.D.2d 596 (2nd Dept. 1981). A classic example is where the facts serving as the basis of the proposed new claim are the same facts alleged in the initial complaint. For instance, the relation back doctrine applies where the amendment adds an assault claim arising out of a shooting accident which formed the basis of the original negligence claim. See e.g., Watso v. City of New York, 39 A.D.2d 960 (2nd Dept. 1972); Carlisle v Count of Nassau, 75 A.D.2d 593 (2nd Dept. 1983). Likewise, the relation back doctrine applies where the amendment adds a negligent claim arising out of the same incident as the alleged conduct of medical malpractice. See e.g., McCormack v. Mount Sinai Hosp., 85 A.D.2d 596 (2nd Dept. 1981) (Plaintiff entitled to amend complaint to allege simple negligence claim where original complaint alleged medical malpractice based on the same facts). See also, Andrews v. Donabella, 60 Misc.2d 1007 (N.Y.Sup., 1969).
Conversely, the relation back doctrine does not
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