Opinion
16-617391
07-15-2019
Jean PIEMONTE-LEHMAN and Thomas Lehman, Plaintiff(s), v. Richard WOJTLOWSKI and Richard T. Wojtlowski, Defendant(s).
PLAINTIFFS' ATTORNEY: RONALD S. ZIMMER, ESQ. 6080 JERICHO TURNPIKE, SUITE 300 COMMACK, NY 11725 DEFENDANTS' ATTORNEY: PICCIANO & SCAHILL, P.C. 1065 STEWART AVENUE, SUITE 210 BETHPAGE, NY 11714
PLAINTIFFS' ATTORNEY:
RONALD S. ZIMMER, ESQ.
6080 JERICHO TURNPIKE, SUITE 300
COMMACK, NY 11725
DEFENDANTS' ATTORNEY:
PICCIANO & SCAHILL, P.C.
1065 STEWART AVENUE, SUITE 210
BETHPAGE, NY 11714
Sanford Neil Berland, J.
Upon the reading and filing of the following in this matter: (1) Notice of Motion to Dismiss, by defendants, filed April 26, 2017, and supporting papers; (2) Affidavit in Opposition and Cross-Motion for Default Judgment, by plaintiffs, filed July 18, 2017, and supporting papers; (3) Affirmation in Opposition to Cross-Motion and Reply Affirmation in Support of Motion to Dismiss, by defendants, filed August 15, 2017; (4) Reply Affidavit, by plaintiff, filed November 13, 2018, and supporting papers; it is
ORDERED that the plaintiffs' motion (seq. # 002) seeking a default judgment pursuant to CPLR 3215 is denied; and it is further
ORDERED that pursuant to CPLR § 306-b, the time for plaintiffs to effectuate service of the amended complaint and summons upon defendants Richard Wojtlowski and Richard T. Wojtlowski, or either of them, is extended to and including sixty days following the electronic filing of this order; and it is further
ORDERED that defendants' motion (seq. #001) pursuant to CPLR 3211(a)(5) and (a)(8) is denied, without prejudice to renewal in the event plaintiffs fail to effectuate service of the amended complaint and summons upon defendants, or either of them, within sixty days of the electronic filing of this order.
This action arises out of an October 31, 2013 motor vehicle accident in which, according to the Department of Motor Vehicles Form MV-104A Police Accident Report ("MV-104A") completed by one of the Police Officers who came to the scene, a vehicle registered to "Richard Wojtlowski" and operated by "Richard T. Wojtlowski" (the "Wojtlowski vehicle") struck the rear end of a vehicle owned by plaintiff Thomas C. Lehman and operated by plaintiff Jean Piemonte-Lehman (the "Lehman vehicle"). Also according to the MV-104A, at the time it allegedly was struck by the Wojtlowski vehicle, the Lehman vehicle was stopped, or stopping, behind a number of other vehicles that were stopped for a red traffic signal in the left lane of northbound Ocean Avenue in Ronkonkoma at its intersection with Expressway Drive North, and the force of the collision caused the Lehman vehicle to strike the vehicle ahead of it, which in turn struck a fourth vehicle.
Mrs. Piemonte-Lehman claims to have suffered serious personal injuries in the collision. On October 28, 2016, just a few days before the expiration of the three-year statute of limitations of CPLR 214(5), she and her husband, suing derivatively, commenced a personal injury action by filing a Summons and Verified Complaint alleging that the named defendant, "Richard Wojtlowski," was both the owner and driver of the vehicle that struck her vehicle. That same day, at 1:30 pm, plaintiffs' process server attempted to effect service of the summons and complaint at 1828 Julia Goldbach Avenue in Ronkonkoma, the address recorded on the MV-104A for both Richard Wojtlowski, the stated registered owner of the Wojtlowski vehicle, and Richard T. Wojtlowski, who was reportedly driving the Wojtlowski vehicle at the time of the October 31, 2013 collision. No one came to the door of the Julia Goldbach Avenue residence then or on the following day, when the process server made two further attempts at service, at 8:10 am and 9:05 pm, respectively. Although an affidavit of substituted service of process was prepared and executed by the process server, indicating that the pleadings were both "posted to the front door" and mailed to the defendant using that same address, it does not appear that that affidavit of service was filed with the county clerk within the time prescribed by CPLR § 308(4). However, on February 22, 2017, plaintiffs filed an amended summons and an amended complaint, both dated—and the latter verified—on November 15, 2016, naming Richard Wojtlowski as the "registrant owner" of the Wojtlowski vehicle and Richard T. Wojtlowski as its driver when it struck the Lehman vehicle and giving 178 Pulaski Road, Kings Park, New York as the address for both defendants. On April 19, 2017, affidavits were filed by plaintiffs' counsel averring that substituted service, pursuant to CPLR § 308 (4), was made upon each of the defendants at the Kings Park address on February 23, 2017.
The matter is now before the court on the defendants' pre-answer motion to dismiss the action pursuant to CPLR § 3211(a)(8) and (5), respectively, for lack of personal jurisdiction and as barred by the statute of limitations, and on the plaintiffs' cross-motion for entry of a default judgment or summary judgment against both defendants pursuant to CPLR §§ 3215 and 3212. In support of their motion and in opposition to the plaintiffs' cross-motion, the defendants provide, among other things, copies of the plaintiffs' original and amended pleadings, a partial copy of the MV-104A Police Accident Report, address and vehicle registration records downloaded from the New York State Department of Motor Vehicles ("DMV"), their own affidavits and affirmations of their attorney. In support of their cross-motion and in opposition to the defendants' motion, the plaintiffs' also provide copies of their pleadings, the MV-104A Police Accident Report, the results of a DMV search of the license plate number for the Wojtlowski vehicle, their attorney's correspondence with the defendants' insurer an affirmation of their attorney, an affidavit purporting to show substituted service of the summons and complaint upon Richard Wojtlowski and two affidavits purporting to show substituted service of the amended summons and complaint upon each of the defendants.
The gravamen of the jurisdictional prong of the defendants' dismissal motion—which is also a predicate for the statute of limitations prong of their motion—is that although both defendants were living at the Julia Goldbach Avenue address in Ronkonkoma on October 31, 2013, when the accident occurred, neither defendant was living there in October 2016 when the initial pleadings were filed, and that although Richard T. Wojtlowski was living at the Pulaski Street address in Kings Park when the action was filed (having moved there in August 2016), he was no longer living at that address in February 2017 when the amended summons and complaint purportedly were served there, having moved to Holbrook in December 2016. Thus, effective service of process has never been made upon either defendant, and therefore personal jurisdiction has not been acquired over either defendant. Further, they contend, because more than 120 days has elapsed since the filing of the original summons and complaint without effective service of process (see CPLR § 306-b ), the running of the three-year statute of limitations of CPLR § 214(5) has not been tolled and it has now lapsed.
Although CPLR § 306-b calls for process to be served "within one hundred twenty days after the commencement of the action or proceeding," the "120-day service provision of CPLR § 306-b can be extended by a court, upon motion, ‘upon good cause shown or in the interest of justice’ ( CPLR § 306-b )" ( Bumpus v. New York City Transit Authority , 66 AD3d 26, 31 [2d Dept 2009] ). The Court may also extend the 120-day service provision sua sponte upon such a showing (see Gurevitch v. Goodman , 269 AD2d 355, 356 [2d Dept 2000] ; Bank of Smithtown v. Lightening Realty Corp. , 2011 NY Slip Op 31302[U] [Sup Ct, Nassau County 2011] ; see also Practice Commentary, McKinney's Cons Law of NY, 2018 Electronic Update, CPLR 306-b ). Nonetheless,
"Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v. Maroney, Ponzini & Spencer , 97 NY2d at 104, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service.... Good cause will not exist where a plaintiff fails to make any effort at service, .... or fails to make at least a reasonably diligent effort at service ....
If good cause for an extension is not established, courts must consider the ‘interest of justice’ standard of CPLR 306-b. The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their determinations, may consider the presence or absence of diligence, along with other factors (see Leader v. Maroney, Ponzini & Spencer , 97 NY2d at 105, 736 N.Y.S.2d 291, 761 N.E.2d 1018 ) ..... The interest of justice standard is broader than the good cause standard (see Mead v. Singleman , 24 AD3d 1142, 1144, 806 N.Y.S.2d 783 ), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant ....
( Bumpus v. New York City Transit Authority , supra , 66 AD3d 26, 31-32 [2d Dept 2009] [internal citations omitted] ).
Here, although it is evident that service of process was deficient and, thus, that personal jurisdiction over either defendant remains to be established, the interests-of justice-standard, if not also the good-cause-shown standard, necessitates that an extension of the 120-day service provision be allowed. It is undisputed that plaintiffs' counsel initially attempted to serve the individual whom it was alleged in the original complaint, however mistakenly, was both the owner and the driver of the Wojtlowski vehicle , first by personal service and then, when that effort was unsuccessful, by substituted service pursuant to CPLR § 308(4). No doubt, counsel could have exercised greater diligence, both in confirming that the single address listed on the MV-104A for both the driver and the registered owner of the Wojtlowski vehicle remained current and, indeed, in earlier appreciating that the middle initial—which in and of itself, like the middle name it denotes, is normally "of no legal significance" ( Matter of Gardiner , 69 NY2d 66, 85 [1986] ; Grygorewicz v. Dom. and Foreign Discount Corp. , 179 Misc 1017, 1019 [Sup Ct 1943] )—distinguished the younger Richard Wojtlowski, the driver of the Wojtlowski vehicle, from the elder, the vehicle's registered owner according to the MV-104A. Nonetheless, after they became aware of their apparent mistake in conflating the two Wojtlowskis, they amended the pleadings, within the time permitted by CPLR § 3025(a), to allege both that the driver of the Wojtlowski vehicle and its owner were two, distinct individuals and that their intention remained, as in the original complaint, to sue both the owner and the driver, and they thereafter undertook to serve both defendants with process, albeit ineffectually, within 120 days of the commencement of the action. Further, although the home at which service was attempted was not then the residence of either defendant, it was a recent residence of Richard T. Wojtlowski, and the current occupants informed him the following day—still within 120 days after the action was commenced—that two copies of the amended pleadings had been left there for him and for the elder Richard Wojtlowski, whom he then notified of that fact. In these circumstances, the interest-of-justice standard of CPLR § 306-b, at the very least, militates in favor of affording plaintiffs an additional period of time to effect service of process upon the defendants.
It is not inconsequential, then, that a Department of Motor Vehicles database search that plaintiffs' counsel indicate they conducted on the license plate number recorded for the Wojtlowski vehicle on the MV-104A identified three vehicles, including a 2009 Mitsubishi - the year and make of the Wojtlowski vehicle involved in the October 2016 accident - all associated with Richard T. Wojtlowski of 178 Pulaski Road in Kings Park. (See Exhibit B to the Affirmation of Christina J. Otto, Esq., dated July 13, 2017 ("Otto Affirmation").) According to plaintiffs' counsel, the search was conducted "on or about" October 24, 2016 (although the second page of the exhibit appears to bear the date "11/1/2016"). (See id. , ¶ 17.)
But see footnote 1, supra.
The defendants contend, however, that as only one "Richard Wojtlowski" was named as a defendant in the originally filed summons and complaint—which, again, alleged that a singular "Richard Wojtlowski" was both the owner and the driver of the Wojtlowski vehicle—and as an additional Richard Wojtlowski—Richard T. Wojtlowski —was added by amended pleadings that were propounded and filed more than three years after the plaintiffs' claims accrued, the thee-year statute of limitations of CPLR § 214(5) bars the claims against the later-added Richard Wojtlowski. In response, the plaintiffs invoke "the relation back doctrine" of CPLR § 203(c), which " ‘allows a claim asserted against a defendant in an amended filing to relate back to claims previously asserted against a codefendant for Statute of Limitations purposes where the two defendants are "united in interest" ’ " ( Poulard v. Papamihlopoulos, 254 AD2d 266, 267 (2d Dept 1998), quoting Buran v. Coupal, 87 NY2d 173, 177 (1995). See CPLR § 203[c] ; Pappas v. 31-08 Cafe Concerto, Inc. , 5 AD3d 452, 453 [2d Dept 2004] ). Although by its terms, CPLR § 203(c), which applies to actions that are commenced by filing, provides that a claim against "the defendant or a co-defendant united in interest with such defendant" is interposed "when the action is commenced," and CPLR § 203(f) provides that
Persistent confusion about the respective roles of the two Richard Wojtlowskis is reflected even in the papers plaintiffs' counsel have filed in opposition to the defendants' current motion and in support of their cross-motion. (See, e.g., Otto Affirmation, ¶10.) Indeed, normally a middle name or initial, in and of itself, is of no substantial legal significance (see Matter of Gardiner , supra ; Grygorewicz v. Dom. and Foreign Discount Corp. , supra ); it is at issue here solely because, semantically in the context of the pleadings in this action, the younger defendant's middle initial provides a concise means to refer distinctly to each of two defendants, who otherwise have the same name. Indeed, from that perspective, the amended pleading could as well be viewed as adding a clarifying amendment to the name of the intended vehicle driver defendant and adding as a separate party a vehicle owner defendant.
[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading
The courts of this State have, nonetheless, applied a three-part test to determine whether claims asserted against a subsequently added defendant relate back, for statute of limitations purposes, to the date the action was first filed:
In order for a claim asserted against a new defendant to relate back to the date the claim was filed against another defendant, the plaintiff must establish that (1) both claims arose out of the same conduct, transaction, or occurrence; (2) the new defendant is united in interest with the original defendant, and by reason of that relationship can be charged with notice of the institution of the action such that he or she will not be prejudiced in maintaining a defense on the merits; and (3) the new defendant knew or should have know that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well.
( Roseman v. Baranowski, 120 AD3d 482, 484 [2d Dept 2014]. See Buran v. Coupal, supra, 87 NY2d at 178, 1790181 (inter alia eliminating the requirement under prior caselaw that plaintiff's mistake as to the identities of the proper parties was "excusable"); Austin v. Interfaith Med. Ctr. , 264 AD2d 702, 703 [2d Dept. 1999] ; see Buran v. Coupal , supra , 87 NY2d at 178 [1995] ; Mondello v. New York Blood Ctr.Greater NY Blood Program , 80 NY2d 219, 226 [1992] ; Nani v. Gould , 39 AD3d 508, 509 [2d Dept. 2007] ; 638 N.Y.S.2d 405, 661 N.E.2d 978 ).
In Poulard v. Papamihlopoulos, supra , the plaintiff's decedent was struck and killed by a motor vehicle owned by Papamihlopoulos and operated by Papas. The plaintiff brought a wrongful death action against Papamihlopoulos only, alleging that she was both the owner and the driver of the vehicle. After the statute of limitations had expired, the plaintiff was granted leave to amend the summons and complaint to add Papas, the driver of the vehicle, as a defendant against whom both compensatory and punitive damages were sought. Papas and Papamihlopoulos appealed, contending that the claims against Papas were time barred. Citing the complementary common law principles that " ‘[p]arties are united in interest only where "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" ’ " ( 254 AD2d at 267, quoting Desiderio v. Rubin, 234 AD2d 581, 583 [2d Dept 1996], quoting Prudential Ins. Co. v. Stone, 270 NY 154, 159 [1936] ), and that "defendants' interests are united ‘only where one is vicariously liable for the acts of the other’ " ( 254 AD2d at 267, quoting Connell v. Hayden, 83 AD2d 30, 45 [2d Dept 1981], and citing the statutory liability that Vehicle and Traffic Law § 388(1) imposes upon a vehicle owner for death or personal injuries caused by the negligence of anyone who uses or operates the vehicle with the owner's express or implied permission ( 254 AD2d at 267 ), the Appellate Division affirmed so much of the appealed order as permitted the plaintiff to amend the complaint to seek compensatory damages from Papas ( id. , 254 AD2d at 266 ).
The Appellate Division held that plaintiff should not have been granted leave to seek punitive damages from Papas as Papamihlopoulos could have had no vicarious or derivative liability for punitive damages "based upon Papas's operation of her vehicle" (id. ), and it directed that the order of the court below be modified to allow Papas to be added as a defendant only to the extent that the complaint sought compensatory damages (id. , ). (The Appellate Division dismissed Papamihlopoulos's appeal, on the ground that she was not aggrieved by the order allowing the plaintiff to amend the complaint add Papas as a defendant (id. ).)
For all purposes material to the current motion and cross-motion, the facts here are indistinguishable from those addressed by the Appellate Division in Poulard v. Papamihlopoulos. That neither of the defendants here may have been aware of the filing of the action until more than three-years after the claims alleged against them accrued is of no consequence for statute of limitations purposes, as pursuant to CPLR § 304(a), an action is commenced - as it was here - by filing the summons and complaint with the clerk of the court; pursuant to CPLR § 203(c) (as discussed above), where an action is commenced by filing, "a claim asserted in the complaint is interposed against the defendant or a codefendant united in interest with such defendant when the action is commenced "; and pursuant to CPLR § 203[a], interposition of the claim ends the running of the statute of limitations. Thus, where, as here, an action has been timely commenced by filing prior to the expiration of the statute of limitations, there is no further requirement that any defendant be made aware, prior to the time the limitations period would have expired had its running not been stopped by the commencement of the action, that an action has been commenced (see Ingram v. Kumar , 585 F2d 566, 571 [2d Cir 1978] (inter alia , claim against defendant misnamed in original complaint as a result of erroneous middle initial related back to filing of original complaint ; indeed, to impose such a requirement would defeat the very purpose of the 1992 amendments to the CPLR that implemented the commencement-by-service regime for actions brought in Supreme Court (Laws of 1992, c. 216; see Alexander, 1992 McKinney's Practice Commentaries, 1992, CPLR § 203, C203:2A).Moreover, defendants concede that the attempt to serve each of them with the amended pleadings at the Pulaski Street residence, albeit insufficient to confer personal jurisdiction over either of them, did result in both defendants, within the initial 120-day period following the commencement of the action, being apprised not only of the pendency of the action but that the action was directed at both of them, thereby attenuating any claim of prejudice, or of surprise that the plaintiffs were pursuing their claims against them.
In Ingram v. Kumar , an action alleging medical malpractice in the treatment of plaintiff's decedent, plaintiff's counsel did not discover that they had erroneously named Dr. Vijay N. Kumar, who had not treated the decedent, rather than Dr. Vijay S. Kumar, who had, as the defendant in their action until after the statute of limitations period applicable to their claims against the latter Dr. Kumar had run. The District Court denied the defendant's motion to dismiss the action as barred by the statute of limitations and granted the plaintiff's cross-motion to amend the complaint to correct the spelling of the defendant's name. The Second Circuit Court of Appeals affirmed the District Court determination, holding that pursuant to FRCP Rule 15 [c], the claims against the correctly named Dr. Kumar related back to the filing of the original complaint. In support of its conclusion, the court observed that
[I]n jurisdictions where timely service of process can be effected after the statute of limitations has run...even an accurately named defendant may not receive actual notice of the action against him prior to the running of the statute of limitations. Yet there is no doubt that the action against him is timely commenced. There is no reason why a misnamed defendant is entitled to earlier notice than he would have received had the complaint named him correctly.
585 F2d at 566.
Accordingly, and for all of the foregoing reasons, that the plaintiffs' motion for entry of a default judgment, pursuant to CPLR 3215, is denied; pursuant to CPLR 306-b, the time for plaintiffs to effectuate service of the amended complaint and summons upon defendants Richard Wojtlowski and Richard T. Wojtlowski, or either of them, is extended to and including sixty days following the electronic filing of this order; and the defendants' motion, pursuant to CPLR 3211(a)(5) and (a)(8) is denied, without prejudice to renewal in the event plaintiffs fail to effectuate service of the amended complaint and summons upon defendants, or either of them, within sixty days of the electronic filing of this order.
The foregoing constitutes the decision and order of the Court.