The following papers numbered on this motion: NYSCEF Doc Numbers Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 3-4, 10, 17-18, 22, 24-25, 39 Answering Affidavit (Affirmation) 41-44, 46 Reply Affidavit (Affirmation) Supplemental Affidavit (Affirmation) 47 Pleadings — Exhibits 5-9, 19-21, 26-38, 49 Stipulations — Minutes Filed Papers DECISION AND ORDER This action arises out of an insurance coverage dispute from alleged property damage to Plaintiff’s property located at 2018 Schenectady Avenue, Brooklyn, NY 11203. The alleged loss occurred on March 15, 2018. On March 11, 2020, Plaintiff filed this action for breach of insurance contract because of the denial of her property insurance claim. Plaintiff originally named NATIONAL GENERAL INSURANCE COMPANY (hereinafter NATIONAL) as Defendant. On August 28, 2021, Defendant NATIONAL moved for dismissal on the basis that no contract of insurance existed between Plaintiff and NATIONAL, but rather the contract of insurance existed between Plaintiff and MIC GENERAL INSURANCE CORPORATION. On November 12, 2020, Plaintiff filed an Amended Complaint, substituting MIC GENERAL INSURANCE CORPORATION (hereinafter MIC) as Defendant in place of NATIONAL. Service on MIC was effectuated through the New York Secretary of State on Sally Hall, who was also the agent for service on NATIONAL On December 14, 2020, Defendant MIC filed a motion to dismiss Plaintiff’s Amended Complaint. Plaintiff cross-moved for leave to amend the Complaint and correct the caption. Defendant MIC argues that the action should be dismissed because its policy with Plaintiff requires that suits be brought within two years after the loss and the Amended Complaint against it was filed more than two years after the loss. Plaintiff argues that Defendant MIC’s motion should be denied as the action was timely commenced pursuant to CPLR §304 and the Amended Complaint was timely served pursuant to CPLR §306-b. Plaintiff’s argument misconstrues the issue. It is clear that the Amended Complaint was filed and served within the six year statute of limitations for breach of contract and that it was an amendment as of right “since the defendant’s motion to dismiss the complaint, which extended [their] time to answer the complaint, also extended the plaintiff’s time to amend the complaint” (Johnson v. Spence, 286 AD2d 481, 483 [2d Dept 2001]; see also CPLR 3025[a]). While this demonstrates that that part of Plaintiff’s motion for leave to serve its Amended Complaint is unnecessary, it does not answer MIC’s argument that the Amended Complaint was filed after the two-year period permitted under the policy. The two-year period cited by MIC is a limitation on commencing an action contained in the insurance policy, not a statute of limitations contained in the CPLR. The case was commenced against MIC when it was served with the supplemental summons and Amended Complaint (see Trioche v. Warner Amex Satellite Entertainment Co., 48 AD3d 671, [2d Dept 2008]), which was more than two years after the claimed loss. “Although a court may allow amendment of a summons to correct the name of a defendant pursuant to CPLR 305(c), such remedy is not available where a plaintiff seeks to substitute a defendant who has not been properly served” (Fadlalla v. Yankee Trails World Tours, 173 AD3d 1538, 1540 [3d Dept 2019]). Here, MIC was not served with the original Complaint. NATIONAL is an existing corporation distinct from MIC, thus the Amended Complaint does not merely correct a name but substitutes one corporation for another. The question before the Court, therefore, is whether the Amended Complaint can be related back to the original Complaint against NATIONAL to satisfy the two-year limitation provision of the policy. The relation back doctrine of CPLR 203(c) has been applied to insurance policy limitation provisions (see Doe v. HMO-CNY, 14 AD3d 102 [4th Dept 2004]). Because the Amended Complaint was untimely, Plaintiff is required to relate back to the original Complaint by establishing that “(1) the 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 an excusable mistake by the plaintiff in originally failing to identify all the proper parties, the action would have been brought against the additional party united in interest as well (Mondello v. New York Blood Center-Greater New York Blood Program, 80 NY2d 219, 226 [1992]). At issue here is the second prong, unity of interest. “Unity of interest requires a showing that the judgment will similarly affect the proposed defendant, and ‘that the new and original defendants are vicariously liable for the acts of the other”‘ [Stokes v. Komatsu America Corp., 117 AD3d 1152, 1155 [3d Dept 2014], quoting Mongardi v. BJ’s Wholesale Club, Inc., 45 AD3d 1149, 1151 [3d Dept 2007]). “If the relationship between the parties is such that one ‘may’ have a defense not available to the other, they are not united in interest (Desiderio v. Rubin, 234 AD2d 581, 583 [2d Dept 1996]). While NATIONAL and MIC are related subsidiaries of the same holding company or parent corporation, they are each separate and distinct entities. Plaintiff has not provided evidence that there is any type of interrelationship between NATIONAL and MIC that would give rise to vicarious liability and entitle Plaintiff to rely upon the relation back doctrine. Further, NATIONAL has a defense that MIC does not — that it did not issue the subject insurance policy. Since the breach of one corporation cannot be imputed to a codefendant corporation, the Defendant MIC is not united in interest with the original Defendant NATIONAL (see Capital Dimensions v. Samuel Oberman Co., 104 AD2d 432, [2d Dept 1984]). Therefore, the Amended Complaint does not relate back to the date of service of the original Complaint and is time barred by the two-year limitation provision of the policy. Lastly, NATIONAL’s motion to dismiss the original Complaint as against it should be granted because Plaintiff admits that MIC not NATIONAL is the proper Defendant, but the action was never formally discontinued against NATIONAL. WHEREFORE, it is ORDERED that NATIONAL GENERAL INSURANCE COMPANY’s motion to dismiss is GRANTED; and it is further ORDERED that MIC GENERAL INSURANCE CORPORATION’s motion to dismiss is GRANTED; and it is further ORDERED that Plaintiff’s cross-motion is DENIED. This constitutes the decision and order of the Court. Dated: February 10, 2022
