ZEHNICK v. Nicholas J. Tozzi Jr., Individually and Doing Business as Nick Tozzi Forklift Service & Repair, Third-Party Defendant-Respondent-Appellant.

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

Sharon ZEHNICK, Respondent-Appellant, v. MEADOWBROOK II ASSOCIATES, Defendant and Third-Party Plaintiff-Appellant-Respondent, New Paltz Housing Associates, Proposed Defendant-Appellant; Nicholas J. Tozzi Jr., Individually and Doing Business as Nick Tozzi Forklift Service & Repair, Third-Party Defendant-Respondent-Appellant.

Decided: July 21, 2005

Before:  SPAIN, J.P., CARPINELLO, ROSE, LAHTINEN and KANE, JJ. Melvin & Melvin P.L.L.C., Syracuse (Michael R. Vaccaro of counsel), for defendant and third-party plaintiff-appellant-respondent and proposed defendant-appellant. Rusk, Wadlin, Heppner & Mastuscello L.L.P., Kingston (John G. Rusk of counsel), for respondent-appellant. Law Offices of Donald L. Frum, Elmsford (James S. Andes of counsel), for third-party defendant-respondent-appellant.

Cross appeals from an order of the Supreme Court (Bradley, J.), entered April 7, 2004 in Ulster County, which, inter alia, granted plaintiff's cross motion to amend the complaint.

On January 18, 1999, plaintiff slipped on snow and fell in a parking area of a housing complex in the Town of New Paltz, Ulster County, known as Meadowbrook Farms.   The housing complex actually consists of two adjoining properties with separate owners, New Paltz Housing Associates (hereinafter New Paltz) and defendant.   The separate properties, however, share roadways, water, sewage and a management office, creating the appearance of a single housing complex.   In addition, the two owners have a common general partner, property superintendent, insurer and-by single contract-contractor for snow removal.

Plaintiff commenced this negligence action only against defendant to recover for injuries allegedly sustained when she fell.   Defendant then commenced a third-party action against its snow removal contractor, Nicholas J. Tozzi Jr., individually and doing business as Nick Tozzi Forklift Service and Repair, seeking contribution and indemnification.   Defendant then moved for summary judgment on the basis that it did not own the property on which plaintiff fell and Tozzi cross-moved for summary judgment.   Plaintiff also cross-moved seeking, among other things, to amend the complaint to add New Paltz as an additional defendant.   Finding that defendant had established that New Paltz-and not defendant-owned the property where plaintiff claims to have fallen, Supreme Court granted defendant's motion for summary judgment, granted plaintiff's cross motion to amend the complaint, but denied Tozzi's cross motion for summary judgment.   Plaintiff, defendant, New Paltz and Tozzi appeal.

First, we disagree with plaintiff's contention that Supreme Court erred in granting summary judgment to defendant.   Plaintiff now concedes that the fall occurred on property owned by New Paltz, but argues that a question of fact exists as to whether she fell within one of the several easements granted to defendant by New Paltz, thereby imposing a duty by defendant to maintain the location in a reasonably safe condition (see Tagle v. Jakob, 97 N.Y.2d 165, 168-169, 737 N.Y.S.2d 331, 763 N.E.2d 107 [2001];  Raksin v. Crown-Kingston Realty Assoc., 254 A.D.2d 472, 473, 680 N.Y.S.2d 265 [1998], lv. denied 94 N.Y.2d 751, 699 N.Y.S.2d 6, 721 N.E.2d 22 [1999] ).   In support of its motion, defendant produced a survey map and a surveyor's affidavit which established that the fall did not occur on defendant's property, or within any of defendant's easements over New Paltz's property, thereby shifting the burden to plaintiff to produce evidentiary proof in admissible form sufficient to raise a material question of fact on the issue (see Lewis v. Safety Disposal Sys. of Pennsylvania, 12 A.D.3d 324, 325, 786 N.Y.S.2d 146 [2004] ).   Plaintiff argues that an issue of fact exists because the surveyor placed her fall on the sidewalk in rendering his opinion when, in fact, she fell in the parking lot.   Inasmuch as the survey map clearly demonstrates that neither the sidewalk nor parking area in question were within an easement owned by defendant and given that plaintiff failed to otherwise offer any evidence to contradict the surveyor's findings, we find that Supreme Court properly granted summary judgment to defendant.

It necessarily follows that, inasmuch as plaintiff failed to assert any claim against Tozzi and defendant's third-party action against Tozzi only asserts claims for contribution and indemnification, the dismissal of the complaint against defendant also mandates a dismissal of the third-party action against Tozzi (see Decotes v. Merritt Meridian Corp., 245 A.D.2d 864, 866, 666 N.Y.S.2d 763 [1997] ).   Accordingly, we find that Tozzi's cross motion for summary judgment should have been granted.

Finally, we agree with New Paltz's contention that plaintiff should not have been permitted to utilize the relation back doctrine to amend her complaint to add New Paltz as a defendant after the statute of limitations had expired (see CPLR 203[c];  Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 661 N.E.2d 978 [1995] ).1  To utilize the doctrine, plaintiff must satisfy three conditions, two of which are readily met here.   First, the claim asserted against the original defendant and the claim to be added against the new party clearly “ ‘arose out of the same conduct transaction or occurrence’ ” (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 [1981] ).   Next, given that defendant and New Paltz share management staff and the same insurance carrier, New Paltz surely knew or should have known that, but for a mistake by plaintiff, the action would have been brought against New Paltz as well (see Buran v. Coupal, supra ).   The more difficult inquiry is whether plaintiff has met the prong of the test which requires that the new party, New Paltz, be “ ‘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 maintaining his defense on the merits” (id. at 178, 638 N.Y.S.2d 405, 661 N.E.2d 978, quoting Brock v. Bua, supra at 69, 443 N.Y.S.2d 407).

We can readily see, given the extent of intermingled employees and facilities between defendant and New Paltz, how Supreme Court reasonably concluded that New Paltz could be charged with notice of the commencement of the instant action.   This prong of the relation back test, however, has been construed as more than a notice provision.   In this context, unity of interest means that “ ‘the interest of the parties in the subject-matter is such that they stand or fall together and that judgment against one will similarly affect the other’ ” (Quine v. Burkhard Bros., 167 A.D.2d 683, 684, 563 N.Y.S.2d 264 [1990], quoting Prudential Ins. Co. v. Stone, 270 N.Y. 154, 159, 200 N.E. 679 [1936] ).   Although the parties might share a multitude of commonalities, including shareholders and officers (see Mercer v. 203 E. 72nd St. Corp., 300 A.D.2d 105, 106, 751 N.Y.S.2d 457 [2002] ), the unity of interest test will not be satisfied unless the parties share precisely the same jural relationship in the action at hand (see Capital Dimensions v. Oberman Co., 104 A.D.2d 432, 433, 478 N.Y.S.2d 950 [1984];  Connell v. Hayden, 83 A.D.2d 30, 42-43, 443 N.Y.S.2d 383 [1981] ).   Indeed, unless the original defendant and new party are “vicariously liable for the acts of the other ․ there is no unity of interest between them” (Quine v. Burkhard Bros., supra at 684, 563 N.Y.S.2d 264;  see Scoma v. Doe, 2 A.D.3d 432, 433, 767 N.Y.S.2d 840 [2003];   Mercer v. 203 E. 72nd St. Corp., supra at 106, 751 N.Y.S.2d 457;  Connell v. Hayden, supra at 42-43, 443 N.Y.S.2d 383).

Here, despite the shared resources of defendant and New Paltz and the intermingled physical infrastructure of the housing complex, their interest in this litigation is not identical-a fact which is apparent from defendant's successful defense by asserting that New Paltz, rather than defendant, owns the property which is alleged to have been negligently maintained (see Connell v. Hayden, supra at 45, 443 N.Y.S.2d 383 [defendants not united in interest when one can avoid liability by placing blame on the other] ).   Here, plaintiff has failed to present any evidence which could demonstrate that defendant and New Paltz-distinct legal entities, created at different times and with different partners-were engaged in a joint venture, partnership or agency relationship such that one would be vicariously liable for the acts of the other (see Mondello v. New York Blood Center-Greater New York Blood Program, 80 N.Y.2d 219, 230, 590 N.Y.S.2d 19, 604 N.E.2d 81 [1992];  Teer v. Queens-Long Is. Med. Group, 303 A.D.2d 488, 489, 755 N.Y.S.2d 430 [2003];  cf. De Sanna v. Rockefeller Ctr., 9 A.D.3d 596, 597-598, 780 N.Y.S.2d 651 [2004];  Ruane v. Cooper, 127 A.D.2d 524, 525, 512 N.Y.S.2d 38 [1987], lv. dismissed 70 N.Y.2d 693, 518 N.Y.S.2d 1029, 512 N.E.2d 555 [1987] ).   Accordingly, plaintiff cannot avail herself of the relation back doctrine and her motion to amend the complaint should have been denied.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied third-party defendant's cross motion for summary judgment and as granted plaintiff's cross motion to amend the complaint;  plaintiff's cross motion denied, third-party defendant's cross motion granted and third-party complaint dismissed against it;  and, as so modified, affirmed.


1.   Although defendant's papers appear to advance this argument on behalf of defendant, defendant is not aggrieved by that portion of Supreme Court's order because the complaint as against defendant has been dismissed (see Rumenapp v. Dellith, 177 A.D.2d 838, 839, 576 N.Y.S.2d 453 [1991];  Hull v. Town of Ithaca, 139 A.D.2d 887, 888, 527 N.Y.S.2d 617 [1988] ).   However, inasmuch as New Paltz appealed Supreme Court's order and defendant's attorney signed its brief as the attorney for both defendant and New Paltz, we address the issue as having been advanced on New Paltz's behalf.



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