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Dort v. Aylmer6/11/1998
Miscellaneous Reports
SULLIVAN COUNTY
DECISION AND ORDER
Defendant Nicholas Wylie moves to dismiss the personal injury action against him on the ground that the action is barred by the Statute of Limitations. Plaintiffs cross-move to consolidate the action against Wylie with another pending action arising out of the same slip and fall. The record establishes that defendant Wylie is not entitled to the relief he seeks and that consolidation of the actions is appropriate. The motion will therefore be denied and the cross-motion granted.
These actions arise out of plaintiff Donald J. Dort's slip and fall in January 1993 on an icy walkway at a mobile home park then owned by Wylie. The particular lot where Dort fell was rented to Michael Aylmer and Ellen Aylmer. Plaintiffs contend that Michael Aylmer was employed by Wylie to supervise the mobile home park. The pending personal injury action against Wylie was commenced in October 1997, more than three years after plaintiffs' cause of action accrued. Plaintiffs contend that because an employer-employee relationship existed between Wylie and Michael Aylmer, who is a defendant in the timely-commenced personal injury action arising out of the same slip and fall, plaintiffs are entitled to the benefit of the relation back doctrine (see, CPLR 203) and that the claim against Wylie is therefore deemed to have been interposed when the complaint was served in the action against Aylmer.
Wylie points out that he was originally named as a defendant in plaintiffs' timely-commenced action but was never served in that action and therefore, pursuant to CPLR 306-b(a), the action against him was automatically dismissed. Accordingly, because the additional 120-day period referred to in CPLR 306-b(b) had also expired, plaintiffs' motion to permit expedited service on Wylie in that action was denied by Decision and Order dated August 11, 1997. Plaintiffs thereafter purchased a new index number, commenced the new action against Wylie, obtained an order permitting expedited service on Wylie and effected such service.
The automatic dismissal of the prior action against Wylie pursuant to CPLR 306-b was not on the merits and does not preclude the new action. CPLR 306-b was designed to increase State revenue (see, Alexander, Practice Commentaries to CPLR 306-b, McKinney's Cons Laws of NY, Book 7B, 1997-1998 Pocket Part, at 129). Plaintiffs' purchase of a new index number served the statute's purpose. The statute was not intended to shorten the period for commencing a new action (see, id., at 127-128). Accordingly, the dispositive issue on Wylie's motion to dismiss is whether plaintiffs are entitled to the benefit of the relation back doctrine.
In Buran v Coupal (87 NY2d 173, 177) the court explained that "the relation back doctrine allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a co-defendant for Statute of Limitations purposes where the two defendants are 'united in interest' * * *" Focusing on the court's reference to "an amended filing" and "claims previously asserted against a co-defendant," Wylie argues that the relation back doctrine applies only where a plaintiff seeks to amend a complaint to add a new defendant to an existing action and not where, as here, there are separate actions. The argument is meritless. The Buran case actually involved two separate actions and the court concluded that the relation back doctrine was applicable.
In Mondello v New York Blood Ctr. (80 NY2d 219, 226) the court concluded that the three conditions to be satisfied before the relation back doctrine will be applied are: " '(1) both cl
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