Southern Wine & Spirits of America, Inc., et al., Plaintiffs-Appellants, v. PLLC

Reset A A Font size: Print

Supreme Court, Appellate Division, First Department, New York.

Southern Wine & Spirits of America, Inc., et al., Plaintiffs-Appellants, v. Impact Environmental Engineering, PLLC, et al., Defendants-Respondents.

3894

Decided: January 20, 2011

Tom, J.P., Andrias, Saxe, Freedman, Manzanet-Daniels, JJ. Ganfer & Shore, LLP, New York (Ira Brad Matetsky of counsel), for appellants. DL Rothberg & Associates, PC, New York (Debra L. Rothberg of counsel), for respondents.

_

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered November 6, 2009, which, inter alia, granted defendants' motion to dismiss the amended complaint, unanimously affirmed, with costs.

Dismissal of the action was appropriate since plaintiffs failed to comply with the express, bargained-for condition precedent to its right to bring an action against defendants (see Yonkers Contr.   Co. v Port Auth. Trans-Hudson Corp., 208 A.D.2d 63 [1995], affd 87 N.Y.2d 927 [1996];  see also Oppenheimer & Co. v Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 690-692 [1995] ).   The agreements between the parties made the submission by plaintiffs of an expert certification to defendants a condition precedent to plaintiffs' right to bring any legal action against defendants.   Plaintiffs failed to submit such certification prior to commencing this action and their efforts to utilize the relation-back doctrine to cure the defective initial complaint are unavailing.   Relation back applies to the amendment of claims and parties and is dependent upon the existence of a valid preexisting action (see Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 248-249 [1980] ).   Here, however, the original complaint was brought by plaintiffs in violation of the condition precedent, and plaintiffs cannot rely upon CPLR 203(f) to cure such failure to comply (see Goldberg v. Camp Mikan-Recro, 42 N.Y.2d 1029 [1977] ).

We have considered plaintiffs' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

_

CLERK