TURNER v. Kone, Inc., et al., Defendants-Respondents. (2026)

Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about December 23, 2024, which, to the extent appealed as limited by the briefs, granted the motion of defendants CEMD Elevator Corp. and CEMD Elevator Corp. d/b/a City Elevator (collectively CEMD) to dismiss the complaint pursuant to CPLR 3211(a)(5) and granted the motion of defendant Kone, Inc. pursuant to CPLR 2221 to renew its prior motion for summary judgment, unanimously affirmed, without costs.

The motion court correctly granted CEMD's motion to dismiss the action as time-barred.  Plaintiff's reliance on the notion that its naming of defendant WeWitt when it originally commenced the action was a “mere misnomer” warranting bringing CEMD into the case notwithstanding the expiration of the statute of limitations, is misplaced.  The initial service of process on WeWitt was insufficient to confer personal jurisdiction on CEMD because neither the WeWitt manager who was served with the complaint nor the WeWitt principal who came into possession of it were authorized to accept service on behalf of CEMD (see Henry v. Tao Group LLC, 243 AD3d 460, 460–461 [1st Dept 2025] ).

Plaintiff cannot argue that the prior order permitting plaintiff to amend her complaint to add CEMD as a defendant was law of the case, because that decision determined only that the proposed amended complaint against CEMD was not patently devoid of merit, rather than finding as a matter of law that service on WeWitt was akin to service on CEMD (see Mulder v Donaldson, Lufkin & Jenrette, 224 A.D.2d 125, 131 [1st Dept 1996], lv dismissed in part & denied in part 93 N.Y.2d 989 [1999] ).  In any event, in dismissing CEMD from the case, the motion court reconsidered its own order, making application of the doctrine discretionary (see Real World Holdings, LLC v. 393 W. Broadway, 236 AD3d 447, 447 [1st Dept 2025] ).

The motion court also properly granted Kone summary judgment.  Kone's agreement with CEMD to purchase a number of contracts, including the contract to service the elevator involved in the accident, explicitly excluded assumption of personal injury liability for events occurring prior to the sale.  Plaintiff's arguments with respect to successor liability are not properly considered because this theory of liability was not alleged in the complaint and was raised for the first time in opposition to the instant motion (see J.S. v. City of New York, 238 AD3d 512, 512 [1st Dept 2025];  Zinbarg v Professional Bus. Coll., Inc., 179 AD3d 607, 607 [1st Dept 2020] ).  Were we to consider this theory, we would find that it does not save plaintiff's claims against Kone as continuity of ownership, the touchstone of the de facto merger concept and thus a necessary predicate to a finding of a de facto merger, is absent here (see Ambac Assur.  Corp. v Countrywide Home Loans, Inc., 150 AD3d 490, 490 [1st Dept 2017] ).