217 TRUST v. VIR CONSTRUCTION INC (2026)

Troy K. Webber, J.P.

Manuel J. Mendez

David Friedman

Martin Shulman

Shlomo S. Hagler, JJ.

Appeal No. 5491

Index No. 650802/17

Case No.2024–07742

217 Trust et al.,

Plaintiffs–Respondents,

-against-

VIR Construction, Inc et al.,

Defendants–Appellants.

Defendants appeal from an order of Supreme Court, New York County (Mary V. Rosado, J.), entered on or about November 19, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiffs' cross-motion to amend the pleadings to add Great Northern Insurance Company as an additional plaintiff and to assert a subrogation claim on behalf of Great Northern.

Harris Beach Murtha Cullina PLLC, New York (Brian D. Ginsberg, Abbie L. Eliasberg Fuchs, Omar Nasar and Jeffery J. Sheng of counsel), for appellants.

Cozen O'Connor, Philadelphia, PA (Kyle Rice, of the bar of the Commonwealth of Pennsylvania and State of New Jersey, admitted pro hac vice, of counsel), and Cozen O'Connor, New York (Robert W. Phelan of counsel), for respondents.

FRIEDMAN, J.

On this appeal, we are asked to determine whether Supreme Court properly exercised its discretion in granting plaintiffs' motion to amend their complaint against their renovation contractors to add a claim by plaintiffs' first-party insurer, as subrogee, to recover the portion of plaintiffs' damages for which the insurer had reimbursed them.  It was assumed by Supreme Court, and is assumed by all parties, that an independent action on the subrogation claim would be time-barred.  Adopting this assumption, we hold that the amendment of the complaint to add the subrogation claim was nonetheless properly allowed under the relation-back doctrine because the original complaint gave defendants “notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to [the subrogation claim asserted in] the amended pleading” (CPLR 203[f] ).

Plaintiff 217 Trust holds title to the residential building located at 217 East 62nd Street (the building) in Manhattan.  Plaintiff Vicky Cornell (who was added as a plaintiff, without objection, by the third amended complaint) is the settlor of 217 Trust and resides in the building.  In or about November 2013, 217 Trust and Cornell (together, the 217 plaintiffs) hired defendants to renovate the building.  It appears from the record that defendants continued to work on the renovation project until at least January 2017.1  As evidenced by the ensuing litigation, the renovation did not go smoothly.

On or about February 14, 2017, 217 Trust commenced this action against five of the present defendants, asserting causes of action for breach of contract, negligence and negligent misrepresentation.2  The original complaint (as well as the three amended complaints that were filed through 2021) claimed, in sum and substance, that due to defendants' alleged mismanagement and the allegedly poor workmanship of the subcontractors they chose, the cost of completing the project “is and will be substantially higher than it should have been and more than [d]efendants represented and agreed it would be.”  The original complaint (and the three subsequent amended complaints) demanded compensatory damages in an amount not less than $2 million and special damages in an amount not less than $3 million.

In January 2021, the court issued an order deeming the verified third amended complaint (TAC) to have been served upon defendants on January 11, 2021.  The TAC, which added Cornell, individually and as settlor of 217 Trust, as a plaintiff, was the operative complaint in this action at the time of the motion practice giving rise to this appeal.

In February 2024, after a change of counsel filed with the court in August 2022, the 217 plaintiffs made a cross-motion for leave to amend the complaint, pursuant to CPLR 3025(b), “to name Great Northern Insurance Company as an additional Plaintiff.” 3  The moving affirmation of plaintiffs' counsel explained:

“This is a Subrogation action by Great Northern for property damage to the residence of Plaintiff's Insureds․  The loss occurred on or about January 31, 2019, when the radiant heating system on the third floor of the premises leaked, causing damage.  Upon information and belief, ․ [defendants] were renovating the premises pursuant to a contract with 217 Trust, which work included the installation of the subject radiant heating system.

“Following the loss, Great Northern's insureds ․ submitted a claim to Great Northern.  Pursuant to its policy, Great Northern paid 217 Trust ․ [$1,093,456.14] for the damage, creating under both law and equity a right of subrogation against any and all third parties responsible for the loss.”

Counsel further alleged in his affirmation:

“Starting in August 2022, the undersigned had several telephone conversations with counsel for [defendants] regarding the status of Great Northern's subrogation action [sic] and the underlying suit filed by 217 Trust.  I explained that we could not move forward with discovery until the underlying action had been amended to name Great Northern as an additional plaintiff.  Defense counsel informed me that their client would not consent to amend the Complaint and that we would need to file a motion to amend.”

In the argument section of the affirmation, counsel stated:

“Because the limitations period for filing a negligence claim expired on February 14, 2020, Plaintiff Great Northern was not able to file a separate action to recover its damages.  As a result, if the Court denies Plaintiff's application, Great Northern's rights will be prejudiced by an inability to pursue recovery for this occurrence.” 4

In further support of the cross-motion to amend, plaintiffs submitted an affidavit of merit by Goldie Brown, a claims examiner for Chubb Ltd., Great Northern's parent company.  Brown alleged that Great Northern was the 217 plaintiffs' “first party property insurer” for the building as of January 19, 2019, on or about which date the 217 plaintiffs “submitted a claim to Great Northern Insurance arising out of construction-related damage to the [insured] Premises.”  Brown averred that, after investigation and adjustment, Great Northern paid the 217 plaintiffs “a total of $1,093,456.14 in damages.” 5

The proposed verified fourth amended complaint (proposed FAC) attached to plaintiffs' cross-motion contains new allegations identifying Great Northern as the carrier that had issued to the 217 plaintiffs a first-party property insurance policy covering the building and had made a payment to its insureds under that policy in the amount of $1,093,456.14.  The second cause of action (negligence) and third cause of action (negligent misrepresentation) are asserted in the proposed FAC on behalf of “[p]laintiffs,” a term defined to include Great Northern as well as the 217 plaintiffs.6  The ad damnum paragraph of the proposed FAC, in addition to demanding not less than $3 million in compensatory damages and not less than $2 million in special damages on behalf of the 217 plaintiffs (as did the previous iterations of the complaint), demands a recovery of not less than $1,093,456.14 on behalf of Great Northern.  The proposed FAC contains no new allegations about defendants' conduct or about the injury defendants allegedly caused.

In opposing the cross-motion, defendants' counsel stated that, in his conversations with plaintiffs' new counsel since August 2022, “there was no discussion of a ‘subrogation action,’ and only the pending matter before this Court.”  Defendants' counsel took the position that any claim based on the leak of January 31, 2019, became time-barred on January 31, 2022, upon the expiration of the three-year limitation period for “an action to recover damages for an injury to property” (CPLR 214[4] ).  Defendants' counsel further averred that allowing the amendment would prejudice defendants by subjecting them to “the obligation of continued litigation in a matter that began in 2017 (seven [7] years ago), when [plaintiffs' counsel] through its own failure neglected to bring the sought-for claim.”

In reply, plaintiffs' counsel stated that the cross-motion to add Great Northern as an additional plaintiff “should be granted, as the subrogation claim is based on the same facts and theory of liability as the primary action” brought by the 217 plaintiffs.  Plaintiffs' counsel further stated:  “If the cross-motion is denied, [d]efendants will still have to defend the claims brought by the [217] plaintiffs in the primary action.  Consequently, granting the cross-motion will not prejudice defendants.  By contrast, if the Court denies the cross-motion, the claims by plaintiff Great Northern will be extinguished.”

Supreme Court, insofar as relevant to this appeal, granted plaintiffs' cross-motion.  The court noted that defendants “do not dispute that the subrogation claims by Great Northern are based on the same transactions and occurrences as the claims by [the 217 plaintiffs].”  The court therefore ruled, relying on CPLR 203(f), that “Great Northern's subrogation claims relate back to the date of the third amended complaint ․ which was deemed served upon [d]efendants on January 11, 2021 ․ and are thus timely” as measured from the date of the leak (January 31, 2019).  Upon defendants' appeal, we affirm.

Initially, we reject defendants' argument that, because plaintiffs' submissions in support of the cross-motion to amend did not cite CPLR 203(f) or expressly refer to the relation-back doctrine, the court improperly applied CPLR 203(f) “sua sponte” in its decision.  Plaintiffs stated in their moving papers that the proposed subrogation claim “arise[s] from the same renovation work that gave rise to the [217 plaintiffs'] existing claims,” that “the subrogation claim is based on the same facts and theory of liability as the primary action [by the 217 plaintiffs],” and that granting the amendment would not prejudice defendants.  In addition, plaintiffs stated in their moving papers that Great Northern could recover on its subrogation claim only if permitted to assert the claim in this action because a “separate action” on the subrogation claim would be time-barred (even if they were mistaken as to the date on which the claim became time-barred).  In view of these statements, it was implicit in plaintiffs' moving papers, even without a citation of CPLR 203(f) or the use of the phrase “relation back,” that plaintiffs were relying on the relation-back theory codified in CPLR 203(f), and defendants could have, and should have addressed that provision in their opposition.  Accordingly, the court properly considered CPLR 203(f) in deciding the cross-motion.

While an application to amend a pleading pursuant to CPLR 3025 lies within the court's sound discretion, “there is no sound basis in law to grant amendment pursuant to CPLR 3025(c) to add an untimely claim” (34–06 73, LLC v. Seneca Ins. Co., 39 NY3d 44, 50 [2022] ).  Thus, a pleading cannot be amended to assert a new claim for which the statute of limitations has expired unless the assertion of the new claim is deemed to relate back to an earlier operative pleading that was filed while the new claim still would have been timely (see id.).  Whether a new claim relates back to the time of the filing of the earlier pleading is governed by CPLR 203(f), which provides:

“A claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.”

In determining whether the original pleading provides the requisite notice of the transactions or occurrences underlying the proposed new claim, a court “should not ․ look[ ] beyond the four corners of the original pleading” (Seneca, 39 NY3d at 51).7

Consistent with its recognition that “the primary purpose of a limitations period is fairness to a defendant” (Duffy v. Horton Mem. Hosp., 66 N.Y.2d 473, 476 [1985] ), the Court of Appeals has called the factor of notice to the defendant within the applicable limitations period “the linchpin of the relation back doctrine” (Matter of Nemeth v. K–Tooling, 40 NY3d 405, 411 [2023] [internal quotation marks omitted], quoting Buran v. Coupal, 87 N.Y.2d 173, 180 [1995] ).  Under this standard, Great Northern's subrogation claim, on its face, should be deemed to relate back to the filing of the earlier complaints.  The proposed FAC alleges that Great Northern, pursuant to its policy covering the building, made a payment to the 217 plaintiffs for a portion of the property damage allegedly caused by defendants' negligence in managing the renovation project.  The earlier complaints all contain substantially the same allegations of defendants' mismanagement of the project as does the proposed FAC. Indeed, had Great Northern not reimbursed the 217 plaintiffs for the damage from the leak that occurred on January 31, 2019, the damage from that leak would have been at issue as a claim of the 217 plaintiffs themselves, inasmuch as the 217 plaintiffs allege that the leak was a result of defendants' mismanagement of the project.8  Stated otherwise, the “transactions, occurrences, or series of transactions or occurrences” referenced in CPLR 203(f), and to be proved in support of the subrogation claim interposed in the proposed FAC – defendants' management of the renovation project – are precisely the same “transactions, occurrences, or series of transactions or occurrences” alleged in the earlier complaints.  As plaintiffs point out, the only effect of the assertion of the subrogation claim is to shift the claim for a portion of the damages allegedly caused by defendants' alleged wrongdoing from the 217 plaintiffs to Great Northern, their insurer.

In fact, this Court has previously held that a subrogation claim by an uninsured motorist carrier “for part of whatever plaintiffs might recover [in a personal injury action] arises out of the same occurrence that gave rise to plaintiffs' claim and is similar enough to plaintiffs' claim that defendant was thereby placed on notice of the insurer's claim” by the original complaint (McHale v. Anthony, 41 AD3d 265, 266 [1st Dept 2007] [internal quotation marks, brackets and ellipsis omitted] ).  This being the case, we concluded in McHale that the subrogation claim, for which an amendment of the complaint was sought, related back to the filing of the original complaint under CPLR 203(f) and, therefore, was not time-barred (see id.).  The same result has been reached by the Second Department (see Steward v Brooklyn Pier 1 Residential Owner, LP, 246 AD3d 988, 989 [2d Dept 2026] [“Utica's subrogation cause of action is not time-barred, as it merely seeks reimbursement for coverage tendered for the plaintiff's personal injuries” and “arises out of the same occurrence that gave rise to the plaintiff's causes of action”] ).

In medical insurance contexts, the Fourth Department has reached conclusions similar to those reached in McHale and Steward (see Poblocki v. Todoro, 55 AD3d 1346, 1347 [4th Dept 2008] [“HealthNow, decedent's insurer, moved to intervene on the ground that it had a contractual right of subrogation for the expenditures that it made for the medical care provided to decedent.  Contrary to the contention of defendants ․, the fact that HealthNow is barred from commencing its own action against them based on the statute of limitations does not preclude intervention inasmuch as HealthNow's claims relate back to the filing of plaintiff's complaint”];  Omiatek v. Marine Midland Bank, N.A., 9 AD3d 831, 831–832 [4th Dept 2004], appeal dismissed 3 NY3d 738 [2004] [plaintiff's health insurer's subrogation claim for amounts it paid for his medical expenses is “deemed to have been timely interposed on the date on which plaintiffs' claim seeking medical expenses as an item of damages was interposed”];  Kaczmarski v. Suddaby, 9 AD3d 847, 848 [4th Dept 2004], appeal dismissed 3 NY3d 738 [2004] [plaintiff's health insurer's subrogation “claim relates back to the date on which plaintiffs' medical malpractice claim was interposed”] ).

It appears that the question of the applicability of the relation-back doctrine to a subrogation claim asserted by an insurer of the original plaintiff has not yet been directly posed to the Court of Appeals.  Nonetheless, the Court of Appeals has signaled its approval of the view that CPLR 203(f) applies in this context.  In Fasso v. Doerr (12 NY3d 80 [2009] ), the Court determined that an insurer's subrogation rights cannot be cut off by a settlement between the injured party and the tortfeasor to which the insurer did not consent (id. at 84).  In setting forth the facts of that case, Judge Graffeo observed that the injured party's health insurer (IHA) had moved to intervene in its insured's malpractice action, rather than bringing its own direct subrogation action against the tortfeasor, because

“by the time it became involved in this case, the statute of limitations had run․  IHA decided to request intervention on the basis that an ‘intervenor's claim will be deemed to have been interposed as of the filing date of the petition ․ if the proposed intervenor's claim and that of the original petitioner are based on the same transaction or occurrence’ and ‘the proposed intervenor and the original petitioner are so closely related that the original petitioner's claim would have given the respondent notice of the proposed intervenor's specific claim so that the imposition of the additional claim would not prejudice the respondent’ ” (id. at 85 n 1 [brackets omitted], quoting Matter of Greater N.Y. Health Care Facilities Assn. v DeBuono, 91 N.Y.2d 716, 720–721 [1998] ).

It is plain from the foregoing that the Court of Appeals in Fasso believed that an insurer's claim as subrogee to recover from a tortfeasor expenditures that the insurer made to or on behalf of an insured who was injured by the tortfeasor meets the standard established in DeBuono for applying the relation-back doctrine of CPLR 203(f) to an otherwise time-barred claim by a new plaintiff.9

In arguing that Great Northern's subrogation claim should not be deemed to relate back to the filing of any of the earlier complaints, defendants argue (1) that none of the earlier complaints gave them notice of at least one essential element of the subrogation claim (specifically, Great Northern's payment of the 217 plaintiffs' claim under their policy);  (2) that Great Northern's failure to assert its subrogation claim before the expiration of the limitation period was a deliberate choice and not a mistake;  and (3) that the amendment of the complaint to assert the subrogation claim will unfairly prejudice defendants.  We address each of these objections in turn.

As previously noted, whether the defendant received notice of the relevant transactions or occurrences from a prior pleading before the expiration of the statute of limitations is indeed the touchstone of the relation-back inquiry under CPLR 203(f) (see Nemeth, 40 NY3d at 411;  Buran, 87 N.Y.2d at 180).  Tellingly, defendants do not deny that the prior complaints put them on notice of the transactions and occurrences giving rise to the claim to which Great Northern became subrogated – namely, defendants' management of the renovation project, which allegedly resulted in defective work, delays and increased costs.10  Rather, defendants rely on the fact that the earlier complaints contained no reference to Great Northern's payment of the 217 plaintiffs' claim under their policy.  We are not persuaded.

This Court has held that “[d]efendants need not have been put on notice of every factual allegation on which the subsequent claims depend ․ [where] the original complaint put them on notice of the occurrences that underlie those claims” (O'Halloran v. Metropolitan Transp.  Auth., 154 AD3d 83, 87–88 [1st Dept 2017] ).  For example, in O'Halloran, the plaintiff brought an action against her employer for gender and disability discrimination and retaliation, and then, after the expiration of the relevant statute of limitations, sought to amend her complaint to include a claim of discrimination based on sexual orientation.  Although the original complaint did not refer to the plaintiff's sexual orientation or to the defendants' awareness of that orientation (which were essential elements of the new claim), we held that it sufficed that the original complaint had put the defendants on notice of “the underlying employment actions taken against [the plaintiff],” which were the occurrences on which both the plaintiff's old and new claims were based (id. at 87).  Here, too, the earlier complaints put defendants on notice of what the claims of both the 217 plaintiffs and Great Northern were really about.  The few facts added in the proposed FAC to support the subrogation claim – the existence of the insurance policy, the claim made thereunder, and Great Northern's payment on that claim – are cut and dried and unlikely to be the source of much contention in the litigation.11

Defendants' next argument is that Great Northern failed to establish that its failure to attempt to have its subrogation claim added to the case before the expiration of the statute of limitations on January 31, 2022 (three years after the date of the radiator leak) was a mistake or inadvertent oversight.  This argument assumes that the three-part test used in determining whether to apply the relation-back doctrine to an amended pleading adding a new defendant – one of the prongs of which is the requirement that the delay be due to a mistake rather than part of a calculated strategy (see Nemeth, 40 NY3d at 407–408;  Buran, 87 N.Y.2d at 178) – applies where, as here, the proposed amendment does not seek to add a new defendant to the case.  However, this Court held otherwise in O'Halloran, where, citing Buran and Duffy, we noted that “[t]he Court of Appeals has recognized that a more relaxed standard applies where a plaintiff seeks to use the relation-back doctrine by adding a new claim against a defendant who is already a party to litigation as opposed to adding a new defendant” (O'Halloran, 154 AD3d at 86).  In O'Halloran, we stated further:

“Thus, although the Court of Appeals has adopted a three-part test for determining whether to apply relation back to an amended pleading that adds a new defendant, no such test applies where a plaintiff simply seeks the relation back of a new claim.  In other words, where, as here, a proposed amended complaint contains an untimely claim against a defendant who is already a party to the litigation, the relevant considerations are simply (1) whether the original complaint gave the defendant notice of the transactions or occurrences at issue and (2) whether there would be undue prejudice to the defendant if the amendment and relation back are permitted” (id. at 87 [citations omitted] ).

In any event, even if the mistake element applied here, the showing required is minimal;  all that is required is a “simple oversight or a mistake of law” (Nemeth, 40 NY3d at 412).  On this record, we cannot say that the delay in asserting the subrogation claim was not based on oversight or mistake of law – the latter perhaps based on plaintiffs' counsel's apparent misapprehension that a claim based on the leak of January 31, 2019, was already time-barred on February 14, 2020, apparently because he was measuring the time from February 14, 2017 (see footnote 4 above and accompanying text).  Moreover, the present record does not disclose when Great Northern made the payment on the 217 plaintiffs' claim.  If the payment was not made until after the statute of limitations expired on January 31, 2022, Great Northern could not have been made a party to the action before the expiration of the limitation period because it would not yet have become subrogated to the claim.  Moreover, it is difficult to see how Great Northern could have realized any tactical advantage by delaying the assertion of the subrogation claim once it had made the payment.

Finally, we reject defendants' argument that the relation-back doctrine should not be applied here because permitting Great Northern to assert its subrogation claim would unduly prejudice defendants by subjecting them to potentially greater liability.  Initially, as defendants concede, this Court has never treated the potential for additional liability as conclusively demonstrating undue prejudice for relation-back purposes (see O'Halloran, 154 AD3d at 89 [“Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to expend additional time preparing its case”], quoting Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654 [1st Dept 2009] ).  That this Court has permitted an amendment to assert an otherwise untimely derivative claim also shows that an increase in exposure to potential liability does not constitute undue prejudice for these purposes (see Giambrone v. Kings Harbor Multicare Ctr., 104 AD3d 546, 547–548 [1st Dept 2013] ).  As we said in Giambrone, to find prejudice, “there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position” (id. at 548, quoting Loomis v Civetta Corinno Constr.  Corp., 54 N.Y.2d 18, 23 [1981] ).  Indeed, the Court of Appeals, in allowing the amendment of the complaint in a medical malpractice case to add an otherwise untimely wrongful death claim, arguably held half a century ago that increased potential liability does not constitute the kind of prejudice that will defeat application of the relation-back doctrine (see Caffaro v. Trayna, 35 N.Y.2d 245, 252 [1974];  see also Vastola v. Maer, 39 N.Y.2d 1019, 1021 [1976] ).  As with their notice argument, defendants' prejudice argument collapses when one considers that the claim for damages based on the January 31, 2019 radiator leak would plainly be part of the case if it were not covered by insurance and were being asserted by the 217 plaintiffs themselves, rather than by their insurer.  That the insurer has paid the claim and now asserts the claim as the subrogee of the 217 plaintiffs should not lead to a different result.

Accordingly, the order of Supreme Court, New York County (Mary V. Rosado, J.), entered on or about November 19, 2024, which, to the extent appealed from as limited by the briefs, granted plaintiffs' cross-motion to amend the pleadings to add Great Northern Insurance Company as an additional plaintiff and to assert a subrogation claim on behalf of Great Northern, should be affirmed, with costs.

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about November 19, 2024, affirmed, with costs.

Opinion by Friedman, J. All concur.

Webber, J.P., Mendez, Friedman, Shulman, Hagler, JJ.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED:  July 30, 2026

FOOTNOTES

1.   All iterations of the complaint (including the proposed fourth amended complaint at issue on this appeal) allege that “[d]efendants remained at the Premises [i.e., the building under renovation] until approximately January 2017.”  However, the affirmation of plaintiffs' counsel in support of the cross-motion giving rise to this appeal represents that, “at the time [January 31, 2019] of [the] incident” giving rise to the damages at issue in the proposed subrogation claim, defendants were still engaged in the renovation project.

2.   Two additional defendants were added by subsequent amendments of the complaint that are not at issue on this appeal.  The distinctions among the four entities and three individuals who are now named as defendants are not relevant to the issues raised on this appeal.

3.   The disposition of the motion by defendants to which plaintiffs' cross-motion responded is not at issue on this appeal.

4.   It is not clear why plaintiffs' counsel believed that an independent action asserting a claim for the damages incurred on January 31, 2019, which Great Northern's proposed subrogation claim sought to recover, would have become time-barred on February 14, 2020 (the third anniversary of the commencement of this action).  This is especially so given that counsel represented in the same affirmation that it was his understanding (contrary to the allegation of the complaint) that defendants had still been engaged in the renovation project on January 31, 2019.

5.   The record does not reveal when Great Northern made its payment to the 217 plaintiffs.

6.   However, the proposed FAC asserts the first cause of action (breach of contract) on behalf of the 217 plaintiffs only.  Accordingly, the breach of contract claim is not at issue on this appeal.

7.   While CPLR 203(f) refers to the “original” pleading as the criterion for determining whether the defendant timely received notice of the transactions or occurrences on which the proposed new claim is based, in this case, as previously noted, the operative pleading at the time of the relevant motion practice was the TAC, which was deemed to have been served in January 2021.

8.   Of course, whether the leak is actually attributable to defendants is a factual issue that must be determined on a full evidentiary record at trial or upon a summary judgment motion.  What is relevant to the relation-back inquiry is that the proposed FAC alleges that defendants were at fault for causing the property damage for which Great Northern reimbursed the 217 plaintiffs.

9.   DeBuono was decided in the context of an article 78 proceeding, but that decision notes that there is “no distinction, for relation back purposes, between a proceeding commenced under article 78 and an action” (91 N.Y.2d at 721).

10.   Nor do defendants argue that, to allow the subrogation claim to relate back to the filing of an earlier pleading, it was necessary for the earlier pleading to refer specifically to the radiator leak for which Great Northern compensated the 217 plaintiffs, rather than to the allegedly defective work on the renovation project in general.

11.   If defendants were correct that a subrogation claim cannot relate back to an earlier pleading unless that pleading alleged the insurer's payment on the insured plaintiff's claim, then none of the above-cited cases in which insurers were allowed to assert otherwise time-barred subrogation claims in preexisting actions brought by their insureds (McHale, Steward, Poblocki, Omiatek and Kaczmarski ) would have been decided as they were.