The following papers numbered E10-E15, E19-E24, E26-E27 read on this motion by Defendants for an order pursuant to CPLR 214(5), dismissing Plaintiff’s Complaint with prejudice due to the failure to bring this action before the three year statute of limitation expired. PAPERS NUMBERED Notice of Motion-Affirmation-Exhibits E10-E15 Affirmation in Opposition-Exhibits E19-E22 Reply Affirmation-Exhibits E23-E24 Letters E26-E27 Upon the foregoing papers, it is ordered that Defendants’ motion is granted for the following reasons: Plaintiff commenced this action by filing a Summons and Verified Complaint on May 12, 2021, wherein he alleged that on February 4, 2018 he was injured while walking by a fence due to a dangerous condition at the premises owned, managed, controlled, maintained and operated by the Defendants, located at 106-02 37th Avenue, Queens, New York. Defendants now move to dismiss this action with prejudice for failing to timely commence this action pursuant to CPLR 214(5). Plaintiff opposes, and argues that pursuant to Executive Law 29-a(2)(d) and as a result of the Covid-19 Pandemic, the statute of limitation for this action was tolled and expired on June 19, 2021. In the alternative, Plaintiff argues that this action was timely commenced due to the relation back doctrine pursuant to CPLR 203( c). Plaintiff has submitted the Third Party Summons and Complaint for the Third Party action entitled Fu Rong 106 LLC, Third Party Plaintiff v. Victor’s Refrigeration Services and Victor A. Guaba, Third Party Defendants, Index Number 705235/18 filed in Supreme Court Queens County. The Third Party Complaint asserts causes of action against Third Party Defendants for common law indemnification and/or contribution, contractual indemnification, breach of contract, and failure to procure insurance. Annexed as an Exhibit to the Third Party Complaint, is a proposed amended Summons and proposed Amended Verified Complaint for the action entitled Crispin Cruz v. Fu Rong 106 LLC, Corona Refrigeration Corp. and Jimmy Mateus, filed under Index Number 705235/18, wherein Plaintiff alleged, in pertinent part, that on February 18, 2018 he was injured when he fell on an “uncovered/unprotected hole in the ground” on the property line between the premises located at 106-02 37th Avenue and 105-20 37th Avenue, Queens, New York. Although not specifically stated, it appears that Defendants are seeking to dismiss this action pursuant to CPLR 3211(a)(5). On a motion to dismiss pursuant to CPLR 3211 (a) (5), the Court is required to “accept the facts as alleged in the complaint as true” and resolve all inferences in favor of the plaintiff (Perez v. Baez, 185 AD3d 1062 [2d Dept. 2020]). CPLR 214 provides that an action to recover for damages for a personal injury must be commenced within three years from the date of the accident. “A toll suspends the running of the applicable period of limitation for a finite time period, and [t]he period of the toll is excluded from the calculation of the [relevant time period]” (Brash v. Richards, 195 AD3d 582 [2d Dept. 2021], [internal quotations omitted]). “Unlike a toll, a suspension does not exclude its effective duration from the calculation of the relevant time period. Rather, it simply delays expiration of the time period until the end date of the suspension” (id.) Here, the Court finds that Plaintiff’s claim that this action was timely commenced, because the statute of limitations was tolled due to the COVID-19 Pandemic is unavailing. In response to the Covd-19 Pandemic, commencing on March 20, 2020, then Governor Andrew A. Cuomo issued an executive order on March 20, 2020, which provided: “I hereby temporarily suspend or modify, for the period from the date of this Executive Order through April 19, 2020 the following: “In accordance with the directive of the Chief Judge of the State to limit court operations to essential matters during the pendency of the COVID-19 health crisis, any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the criminal procedure law, the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020 (9 NYCRR 8.202). Subsequently, Governor Cuomo issued a series of nine subsequent executive orders that extended the suspension or tolling period, eventually through November 3, 2020 (id.). Although seven of the executive orders issued after the initial executive order did not use the word “toll”, “those subsequent executive orders continued the toll that was put in place by Executive Order” (id.). Consequently, any period of limitations that expired between March 3, 2020 and November 3, 2020 was extended to November 3, 2020. This toll merely stopped the running of any applicable period of limitations for the 228 day period of time between March 3, 2020 and November 3, 2020. Contrary to Plaintiff’s claims, the executive orders did not extend everyone’s statute of limitations period for an additional 228 days. As such, the statute of limitations for Plaintiff to commence this action expired on February 4, 2021. Since Plaintiff commenced this action on May 12, 2021, it is barred by the three-year statute of limitations The Court also finds Plaintiff’s claim that this action was timely commenced due to the relation back doctrine pursuant to CPLR 203(c) is without merit. CPLR 203(c) provides that: Claim in complaint where action commenced by filing. In an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced. For the rule allowing relation back to the original date of filing under CPLR 203(c) to apply, a Plaintiff must prove that: “(1) both claims arose out of the same conduct, transaction, or occurrence, (2) the new party is 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 the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well” (Sally v. Keyspan Energy Corp., 106 AD3d 894, 896-97 [2d Dept. 2013], lv denied 22 NY3d 860 [2014]). Here, the Court finds Plaintiff failed to establish that Defendants knew or should have known of the prior Third Party Complaint. Plaintiff’s claim that Defendants were aware of the basis of the claims asserted in the instant action merely by virtue of the existence of the Third Party Complaint in a prior action is unavailing. Notably, Plaintiff failed to submit an affidavit of service establishing that Third Party Complaint was served upon Defendants, or that Defendants were aware of the Third Party Action. Moreover, in the instant action Plaintiff claims his accident occurred on February 4, 2018, and in the prior action he claimed his accident occurred on February 18, 2018. Consequently, Plaintiff is not entitled to an extension of the statute of limitations under the relation-back doctrine. Accordingly, Defendants’ motion is granted and the action is dismissed. Dated: February 7, 2022
