Amendment to Name Defendant Did Not Relate Back to Date of Original Complaint
John Lundin
Trusted business advisor and litigator; authority on practice in the New York State courts, and, in particular, the Commercial Division.
In the past week, Schlam Stone & Dolan LLP's Commercial Division Blog has posted on a number of issues, including the May 3, 2018, decision by the First Department in Markov v. Stack's LLC (Delaware), 2018 NY Slip Op. 03238, holding that a proposed amendment to a complaint to name a new defendant did not relate back to the date of the original complaint, explaining:
The motion court properly dismissed the complaint on the ground that it was served after the statutory limitations period had expired. Plaintiff's claims arose on January 14, 2008. The original complaint in this action, which was filed on January 6, 2014 (just days before the six-year statute of limitations expired), did not name Stack's LLC as a defendant, nor did it name defendant Stack's LLC (Delaware). The amended complaint, which for the first time named Stack's LLC (Delaware) as a defendant, was not filed until January 24, 2014 — more than a week after the statute had run. Plaintiff cannot properly rely on CPLR 1024 as a shield from the statute of limitations. Even assuming that the appellation "John Doe" referred to a corporation rather than a natural person, the complaint's description of the John Doe defendant was not described in such a way as to fairly apprise Stack's LLC (Delaware) that it was an intended defendant. Thus, the inadequate description rendered the action jurisdictionally defective.
(Internal citations omitted).
Other posts included:
On April 23, 2018, Justice Kornreich of the New York County Commercial Division issued a decision in Q China Holdings, Ltd. v. TZG Capital Ltd., 2018 NY Slip Op. 30779(U), dismissing a holder claim, that is, a claim for damages for being fraudulently induced not to sell securities.
On May 3, 2018, the First Department issued a decision in MPEG LA, L.L.C. v America Information Systems, Inc., 2018 NY Slip Op. 03210, dismissing a claim for failure to use a pre-suit audit procedure.
On May 3, 2018, the Third Department issued a decision in Belair Care Center, Inc. v. Cool Insuring Agency, Inc., 2018 NY Slip Op. 03196, holding that a proposed claim against a new defendant was time-barred because it did not relate back to earlier claims.
On May 3, 2018, the First Department issued a decision in Publications International, Ltd. v. Phoenix International Publications, Inc., 2018 NY Slip Op. 03204, dismissing a counterclaim for being "conclusory and lacking in factual specificity.
On May 7, 2018, Justice Bransten of the New York County Commercial Division issued a decision in Labor Law 240 Risk Management, LLC v. CRC Insurance Services, Inc., 2018 NY Slip Op. 30859(U), dismissing a claim based on a third-party beneficiary theory.
On May 10, 2018, the First Department issued a decision in Rosengarten v. Born, 2018 NY Slip Op. 03465, affirming the striking of defendants' pleadings as a discovery sanction.