TRICOCHE v. Viacom, Inc., et al., respondents. (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Molia, J.), dated December 14, 2006, (2) so much of an amended order of the same court (Baisley, J.), dated January 17, 2007, as, in effect, granted the motion of the defendants Viacom, Inc., and Viacom International, Inc., pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred, and denied, as academic, that branch of his cross motion which was for an extension of time, nunc pro tunc, in which to serve an “amended summons” and amended complaint upon the defendants Viacom, Inc., and Viacom International, Inc., and (3) so much of an order of the same court (Baisley, J.), dated June 1, 2007, as denied that branch of his motion which was for leave to renew his opposition to the prior motion to dismiss the amended complaint insofar as asserted against the defendants Viacom, Inc., and Viacom International, Inc., pursuant to CPLR 3211(a)(5), as time-barred.

ORDERED that the appeal from the order dated December 14, 2006, is dismissed, as that order was superseded by the amended order;  and it is further,

ORDERED that the amended order is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated June 1, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The plaintiff's claims against the defendants Viacom, Inc., and Viacom International, Inc. (hereinafter the Viacom defendants), were not interposed until the filing of the supplemental summons and amended complaint, which first named those parties as defendants, in June 2006 (see Perez v. Paramount Communications, 92 N.Y.2d 749, 756, 686 N.Y.S.2d 342, 709 N.E.2d 83;  Matter of Williams v. County of Genesee, 306 A.D.2d 865, 867, 762 N.Y.S.2d 724).   Since the incident from which this action arose occurred in February 2003, more than three years earlier, the action, insofar as asserted against the Viacom defendants, was time-barred (see CPLR 214[5] ).

 Contrary to the plaintiff's contention, his claims against the Viacom defendants did not relate back to the claims asserted in the original complaint, since the Viacom defendants were not united in interest with either of the defendants named in the original complaint (see CPLR 203[c];  Buran v. Coupal, 87 N.Y.2d 173, 177, 638 N.Y.S.2d 405, 661 N.E.2d 978;  Mondello v. New York Blood Ctr.-Greater N.Y. Blood Program, 80 N.Y.2d 219, 226, 590 N.Y.S.2d 19, 604 N.E.2d 81;  Prudential Ins. Co. v. Stone, 270 N.Y. 154, 159, 200 N.E. 679;  Monir v. Khandakar, 30 A.D.3d 487, 489, 818 N.Y.S.2d 224;  Zehnick v. Meadowbrook II Assocs., 20 A.D.3d 793, 796, 799 N.Y.S.2d 604;  Mercer v. 203 E. 72nd St. Corp., 300 A.D.2d 105, 106, 751 N.Y.S.2d 457;  Valmon v. 4 M & M Corp., 291 A.D.2d 343, 344, 738 N.Y.S.2d 340;   Feszczyszyn v. General Motors Corp., 248 A.D.2d 939, 940, 669 N.Y.S.2d 1010;  Connell v. Hayden, 83 A.D.2d 30, 39-59, 443 N.Y.S.2d 383).   Moreover, the supplemental summons and amended complaint did not merely correct a misnomer (see CPLR 305[c];  Ober v. Rye Town Hilton, 159 A.D.2d 16, 557 N.Y.S.2d 937), but added new defendants, after the expiration of the statute of limitations (see Reuter v. Haag, 224 A.D.2d 603, 604-605, 638 N.Y.S.2d 673;  Bartnicki v. Centereach Fire Dept., 222 A.D.2d 637, 638, 635 N.Y.S.2d 696;  Potamianos v. Convenient Food Mart, 197 A.D.2d 734, 735-736, 602 N.Y.S.2d 702;  Reid v. Niagara Mach. & Tool Co., 170 A.D.2d 662, 663, 567 N.Y.S.2d 83;  Polizzano v. Gotham Constr. Corp., 47 A.D.2d 48, 50, 365 N.Y.S.2d 186).   Accordingly, the Supreme Court properly dismissed the amended complaint insofar as asserted against the Viacom defendants.

 The Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew his opposition to the motion to dismiss the amended complaint insofar as asserted against the Viacom defendants, since the plaintiff failed to establish that there was a “reasonable justification” for his failure to present the new evidence in opposition to the original motion (CPLR 2221[e][3];  see Lardo v. Rivlab Transp. Corp., 46 A.D.3d 759, 848 N.Y.S.2d 337;  Crystal House Manor, Inc. v. Totura, 29 A.D.3d 933, 815 N.Y.S.2d 467).   In any event, the new facts presented by the plaintiff in support of his motion did not warrant a change of the prior determination (see CPLR 2221[e][2];  Reshevsky v. United Water New York, Inc., 46 A.D.3d 532, 846 N.Y.S.2d 616).

The plaintiff's remaining contentions are without merit.