KURYLA v. NA LLC (2007)

In an action to recover damages for personal injuries, etc., the defendant Daimler Chrysler Services NA, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated January 17, 2006, as granted that branch of the plaintiffs' motion which was for leave to amend the complaint to add it as a defendant in the action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiffs' motion which was for leave to amend the complaint to add the appellant as a defendant in the action is denied, and the caption is amended so as to delete Daimler Chrysler Services NA, LLC, as a defendant.

The Supreme Court erred in granting that branch of the plaintiffs' motion which was for leave to amend the complaint to add Daimler Chrysler Services NA, LLC (hereinafter Daimler Chrysler), as a defendant.   The cause of action sought to be asserted against Daimler Chrysler was interposed after the effective date of 49 USC § 30106, which bars the plaintiffs from asserting that cause of action against Daimler Chrysler under the circumstances presented here.   Moreover, the plaintiffs' reliance upon the relation-back doctrine to avoid the operation of 49 USC § 30106 is without merit, as that doctrine is potentially available only to save claims which a defendant asserts are barred by a statute of limitations (see Jones v. Bill, 34 A.D.3d 741, 742, 825 N.Y.S.2d 508;  see also Monir v. Khandakar, 30 A.D.3d 487, 818 N.Y.S.2d 224;  DeLuca v. Baybridge at Bayside Condominium I, 5 A.D.3d 533, 534, 772 N.Y.S.2d 876;  L & L Plumbing & Heating v. DePalo, 253 A.D.2d 517, 677 N.Y.S.2d 153), and no statute of limitations defense is implicated in this action.

We do not consider the plaintiffs' alternative contention, as it is asserted for the first time on appeal (see Militrano v. Lederle Labs., 26 A.D.3d 475, 478, 810 N.Y.S.2d 506;  Lang v. Cohalan, 127 A.D.2d 17, 21, 513 N.Y.S.2d 726).