Cucuzza v. Vaccaro

Brown, J. (dissenting).

Although I am not unsympathetic with the result reached by the majority in its analysis of CPLR 203 (e), I must respectfully dissent on the ground that this court has consistently held that that provision of the statute does not permit a relation back of the date of interposition of a claim asserted in the amended pleading to the date that a third-party complaint was served (Allstate Ins. Co. v EMSCO Homes, 93 AD2d 874; Trybus v Nipark Realty Corp., 26 AD2d 563). It is true, as has been previously acknowledged by this court (see, Brock v Bua, 83 AD2d 61, 65, n), that the construction placed upon the statute by the majority, which would allow the date of claim interposition to relate back to the date that the defendant served the third-party defendant with the third-party complaint, is consistent with the purposes of the Statute of Limitations. CPLR 203 (e) clearly states that: “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.” This court has, however, consistently concluded that this provision applies only to amended complaints asserting new claims against the original parties to the action and not to claims asserted against new parties for the first time in an amended complaint (Allstate Ins. Co. v EMSCO Homes, supra; Trybus v Nipark Realty Corp., supra; see also, Brock v Bua, supra).

The arguments presented by the majority in favor of extending the scope of the statute to cover the situation at bar were advanced in this court by Justice Hopkins in his dissent in Trybus, and were implicitly rejected by the majority of the court in that case. While the views expressed by Justice Hopkins form the theoretical basis for certain commentaries on the scope of the statute (see, McLaughlin, Supplementary Practice Commentaries [1982, 1983] McKinney’s Cons Laws of NY, Book 7B, CPLR C203:ll, 1984-1985 Pocket Part, at 52-54), and have been adopted by two other Departments (see, Holst v Edinger, 93 AD2d 313 [1st Dept]; Lancaster Silo & Block Co. v Northern Propane Gas Co., 75 AD2d 55 [4th Dept]), this court and the Third Department (see, Village of St. Johnsville v Travelers Indent. Co., 93 AD2d 932; Knorr v City of Albany, 58 AD2d 904) have consistently adhered to the position advanced in Trybus (supra). Indeed, in the recent case of Duffy v Horton Mem. Hosp. (109 AD2d 927), the Third Department stated: “[T]his court is not of the view that the relation back provision contained in CPLR 203 (e) permits a plaintiff to impose a direct claim against third-party defendant by considering the date that third-party defendant was impleaded as the applicable date of reference. A claim asserted in the amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed (CPLR 203 [e]). We continue to hold to'the view that courts are not authorized to permit plaintiff to assert an otherwise time-barred claim in an amended pleading by considering the date that a third-party defendant was impleaded as being ‘the time the claims in the original pleading were interposed’ (CPLR 203 [3]; cf. Velez v Springer, 102 AD2d 823) *** Special Term properly * * * denied plaintiff leave to serve an amended complaint on third-party defendant (Village of St. Johnsville v Travelers Indem. Co., supra, p 933; Knorr v City of Albany, 58 AD2d 904)”.

Therefore, in my view, in the absence of any direction from the Court of Appeals on the issue, or an amendment of the statute by the Legislature, under principles of stare decisis this court is bound to adhere to its long-standing interpretation set forth in Trybus (supra) and is required to hold that the doctrine of relation back (CPLR 203 [e]) is inapplicable to claims asserted, as here, for the first time against a new party to the plaintiff’s action.

Accordingly, I vote to affirm the order appealed from.

Gibbons, J. P., and Niehoff, J., concur with Lawrence, J.; Brown, J., dissents and votes to affirm the order appealed from, with an opinion.

Order of the Supreme Court, Richmond County, entered July 20, 1983, reversed, without costs or disbursements, and motion for leave to serve an amended complaint in the form annexed to plaintiff’s moving papers, asserting a cause of action directly against the third-party defendant granted. Plaintiff’s time to serve his amended complaint is extended until 20 days after service upon him of a copy of the order to be made hereon, with notice of entry.