CONTOS v. Nissan Motor Acceptance Corporation, et al., appellants. (2007)

In an action to recover damages for personal injuries, etc., the defendants Nissan Motor Acceptance Corporation, Nissan-Infiniti L.T., and NILT, Inc., appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated September 27, 2005, which denied their motion pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time barred.

ORDERED that the order is reversed, on the law, with costs, and the motion to dismiss the amended complaint insofar as asserted against the appellants as time barred is granted.

The Supreme Court erred in denying the motion of the defendants Nissan Motor Acceptance Corporation, Nissan-Infiniti L.T., and NILT, Inc. (hereinafter collectively Nissan), to dismiss the amended complaint based on the applicable statute of limitations (see CPLR 214[5] ).   The plaintiff Deborah Contos allegedly was injured on September 4, 2001, when a vehicle driven by the defendant Bridget Mahoney, and leased by Nissan to the defendant Louise Mahoney, struck the vehicle in which Contos was a passenger.   The plaintiffs timely commenced this action against the Mahoneys on July 18, 2002, but did not serve an amended complaint including additional causes of action against Nissan until April 11, 2005.   The plaintiffs conceded that the action was not timely commenced against Nissan, but argued that the relation-back doctrine applied to preserve their otherwise expired causes of action (see Buran v. Coupal, 87 N.Y.2d 173, 177-178, 638 N.Y.S.2d 405, 661 N.E.2d 978).   We disagree.

 In order for a claim asserted against a new party to relate back to the date the claim was filed against the original defendant, the plaintiff must establish that “both claims arose out of same conduct, transaction or occurrence;  the new party is ‘united in interest’ with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that he will not be prejudiced in defending the action on the merits;  and the new party knew or should have known that, but for a mistake by plaintiff as to the identity of the proper parties, the action would have been brought against him as well” (Buran v. Coupal, supra at 178, 638 N.Y.S.2d 405, 661 N.E.2d 978, quoting Brock v. Bua, 83 A.D.2d 61, 69, 443 N.Y.S.2d 407;  see 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).

 Here, it is undisputed that the first element was satisfied.   However, even assuming that the plaintiffs also established the second element, i.e., that Nissan was united in interest with the Mahoneys (see Poulard v. Papamihlopoulos, 254 A.D.2d 266, 267, 678 N.Y.S.2d 383), the plaintiffs failed to establish the third and final element.   The plaintiffs' failure timely to commence this action against Nissan was not the result of a mistake or an inability to identify the correct defendant within the applicable limitations period (see Monir v. Khandakar, 30 A.D.3d 487, 489, 818 N.Y.S.2d 224;  Pappas v. 31-08 Café Concerto, 5 A.D.3d 452, 453, 773 N.Y.S.2d 108).   More than one year before the expiration of the statute of limitations, Louise Mahoney testified, at her deposition, that she leased the vehicle from Nissan.   Additionally, prior to the expiration of the statute of limitations, the plaintiffs received a copy of the Lease Termination Statement identifying Nissan as the lessor.   Therefore, well before the expiration of the statute of limitations, the plaintiffs clearly knew that Nissan was the owner of the vehicle.   Under the circumstances, their failure timely to name Nissan was not the result of a mistake as to the identity of the proper defendant.   Therefore, Nissan's motion to dismiss should have been granted (see Buran v. Coupal, 87 N.Y.2d 173, 181, 638 N.Y.S.2d 405, 661 N.E.2d 978;  Monir v. Khandakar, supra;  Snolis v. Biondo, 21 A.D.3d 546, 547, 799 N.Y.S.2d 919;  Hughes v. Bi Feng Nie, 12 A.D.3d 406, 407, 783 N.Y.S.2d 841).