ABREU v. William Adu–Agyei, Defendant–Appellant. (2018)

 Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about November 22, 2016, which, to the extent appealed from as limited by the briefs, denied defendant William Adu–Agyei's (defendant) motion to dismiss the amended complaint, unanimously affirmed, without costs.

This action for personal injuries arises from a motor vehicle accident that occurred on September 7, 2012.  Defendant was operating one of the vehicles involved in the accident.

On August 25, 2015, 13 days before the statute of limitations expired, plaintiff moved to amend the complaint to, among other things, add defendant as a party.  A copy of the proposed amended summons and complaint were annexed to plaintiff's moving papers.

By order dated February 4, 2016, and entered on February 5, 2016, the court granted plaintiff's motion.  Upon entry of the order granting leave, plaintiff had until February 18, 2016 to serve defendant with the amended pleadings within the applicable statute of limitations (see Perez v. Paramount Communications, 92 N.Y.2d 749, 755–756, 686 N.Y.S.2d 342, 709 N.E.2d 83 [1999];  Long v. Sowande, 27 A.D.3d 247, 248, 810 N.Y.S.2d 195 [1st Dept. 2006] ).

On February 10, 2016, plaintiff served all parties including defendant with a copy of the February 4, 2016 order with notice of entry, annexing the amended summons and amended verified complaint.  Those papers were filed with the Clerk of the Court on that same date.

Contrary to defendant's contention, plaintiff was not required to serve him with the motion to amend before the Supreme Court could decide the motion (see Eastern States Elec. Contrs. v. Crow Constr. Co., 153 A.D.2d 522, 524, 544 N.Y.S.2d 600 [1st Dept. 1989] ).  Plaintiff's filing of the motion to amend and annexed proposed amended pleadings tolled the applicable statute of limitations (see Perez, 92 N.Y.2d at 755–756, 686 N.Y.S.2d 342, 709 N.E.2d 83).

In addition, the record shows that plaintiff's claims against defendant were interposed eight days before the statute of limitations expired, as the amended pleadings were annexed to the February 4, 2016 order with notice of entry, which was served upon defendant and filed with the Clerk of the Court on February 10, 2016.  Plaintiff's failure to file the amended pleadings as a separate docket entry is not fatal to his maintaining the action against defendant, because the amended pleadings were timely filed with the Clerk of the Court after being served upon defendant (see CPLR 305), and defendant has not shown any prejudice (see CPLR 2001).  Further, CPLR 2001 authorizes the court to direct plaintiff to correct this type of filing mistake (see Miller v. Waters, 51 A.D.3d 113, 117–118, 853 N.Y.S.2d 183 [3d Dept. 2008] ).