DONOVAN v. [And Other Actions]. (2006)

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about October 24, 2005, which, to the extent appealed from, granted plaintiff's cross motion to add Praxair Distribution Inc. as a party defendant, unanimously affirmed, without costs.

The court properly determined that plaintiff satisfied the requirements of the relation back doctrine (see Buran v. Coupal, 87 N.Y.2d 173, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ).   The record establishes that Praxair Distribution is united in interest with Praxair, Inc., of which it is a wholly owned subsidiary, acting as the distributor for Praxair products.   The two entities “necessarily have the same defenses to plaintiff's claim” and will “stand or fall together” in this litigation (Lord Day & Lord, Barrett, Smith v. Broadwall Mgt. Corp., 301 A.D.2d 362, 363, 753 N.Y.S.2d 68 [2003], quoting Connell v. Hayden, 83 A.D.2d 30, 43 and 40, 443 N.Y.S.2d 383 [1981];  cf. Mercer v. 203 E. 72nd St. Corp., 300 A.D.2d 105, 751 N.Y.S.2d 457 [2002];  Achtziger v. Fuji Copian Corp., 299 A.D.2d 946, 948, 750 N.Y.S.2d 413 [2002], lv. denied 100 N.Y.2d 548, 762 N.Y.S.2d 871, 793 N.E.2d 408 [2003] ).   The record shows that the two companies, intentionally or not, often blurred the distinction between them.   Indeed, Praxair produced for deposition an employee of Praxair Distribution (see Marvin Neiman, P.C. v. Adar Importing & Distrib. Co., Inc., 243 A.D.2d 408, 663 N.Y.S.2d 562 [1997] ).

In view of the companies' unity of interest, Praxair Distribution is chargeable with notice of the institution of the action (see Brown v. 3392 Bar Corp., 2 A.D.3d 324, 768 N.Y.S.2d 609 [2003];  Cruz v. Vinicio, 259 A.D.2d 294, 686 N.Y.S.2d 409 [1999] ).   Praxair Distribution has made no showing that it would be unduly prejudiced by its addition as a defendant (see Brown v. 3392 Bar Corp., supra ).   Indeed, Praxair Distribution has already “participated” in the lawsuit by having its employee deposed on behalf of Praxair.   Moreover, Praxair Distribution has been impleaded in the suit and is a named fourth third-party defendant.

The record establishes that the initial failure to add Praxair Distribution earlier was not intended, but was simply a mistake on plaintiff's part (see Buran v. Coupal, supra;  Pappas v. 31-08 Café Concerto, Inc., 5 A.D.3d 452, 453, 773 N.Y.S.2d 108 [2004] ).