YANG v. GRIFFIN (2025)

Order, Supreme Court, New York County (Suzanne Adams, J.), entered July 30, 2024, which granted defendant's motion to dismiss the complaint based on the statute of limitations and denied plaintiff's cross-motion to consolidate the action with an action entitled Hyun S. Yang v Au Jus and 99th St.  LLC, index No. 158372/2021, unanimously reversed, on the law, without costs, the motion to dismiss the complaint denied, and the cross-motion to consolidate granted.

It is undisputed that the instant action was filed more than a month after the expiration of the three-year statute of limitations for negligence (CPLR 214[5]).  However, plaintiff demonstrated that the relation-back doctrine was applicable here utilizing the factors set forth in Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 (1995) (see Ramirez v. Elias–Tejada, 168 A.D.3d 401, 402–403, 92 N.Y.S.3d 188 [1st Dept. 2019]).

The first prong of the three-prong test was met where this action and the prior action against defendants Au Jus and 99th Street LLC arose from the same alleged slip and fall by plaintiff on February 3, 2021.  The second prong was also satisfied in that defendant Griffin and Au Jus were united in interest.  Griffin testified that he owned and managed Au Jus on a day-to-day basis and personally cleaned the sidewalk of snow and ice or supervised its cleaning on the day of the accident.  Thus, Au Jus and Griffin will “stand or fall together” in the actions and a “judgment against one will similarly affect the other” (Matter of Nemeth v. K–Tooling, 40 N.Y.3d 405, 415, 201 N.Y.S.3d 323, 224 N.E.3d 513 [2023] [internal quotation marks omitted]).

Plaintiff also satisfied the third prong of the Buran test by demonstrating a mistake was made in not adding Griffin to the prior action before the applicable statute of limitations (see Ellis v. Newmark & Co. Real Estate, Inc., 209 A.D.3d 520, 522, 177 N.Y.S.3d 15 [1st Dept. 2022]).  Griffin had notice and was deposed in the prior action and will not be prejudiced by the assertion of a claim against him in the instant action (see Fellner v. Morimoto, 52 A.D.3d 352, 353, 862 N.Y.S.2d 349 [1st Dept. 2008] [newly added defendant not prejudiced where he owned the entity that was sued]).

Griffin's assertions that plaintiff intentionally decided not to assert a claim against him in the prior action knowing that he was potentially liable and that he was omitted from that action in order for plaintiff to obtain a tactical advantage are unsupported by the record (see Matter of Nemeth, 40 N.Y.3d at 408, 201 N.Y.S.3d 323, 224 N.E.3d 513).

This action is properly consolidated with the prior action as the two matters arise from the same acts and occurrences (see Picchioni v. Sabur, 232 A.D.3d 112, 122, 218 N.Y.S.3d 584 [1st Dept. 2024]).