DECISION AND ORDER On the evening of October 13, 2017, defendant Balamurugan Rengasamy was driving a vehicle owned by defendant PV Holding Corp. (hereinafter PV Holding) on Stonebreak Road Extension in the Town of Malta, Saratoga County, when he rear-ended a vehicle owned and operated by plaintiff. This personal injury action was later commenced on October 9, 2020. Plaintiff alleges “[t]hat at the time of the incident…Rengasamy was a non-resident of the State of New York, living at 100 Saratoga Village[, Suite #] 48, Malta, New York 12020.” That being said, the Secretary of State was served as attorney-in-fact for Rengasamy on October 13, 2020 (see Vehicle and Traffic Law §253 [1]).1 Corporation Service Company was served as registered agent for PV Holding on that same date (see Business Corporation Law §305 [a]). On December 28, 2020, plaintiff filed an amended summons and complaint which also named as defendants “GlobalFoundries U.S. Inc. and John Doe or Jane Doe Company, a company who was the employer of defendant Balamurugan Rengasamy.” Corporation Service Company was then served as registered agent for GlobalFoundries U.S. Inc. (hereinafter GlobalFoundries) on February 24, 2021 (see Vehicle and Traffic Law §305 [a]). GlobalFoundries subsequently served an answer with cross claim on March 22, 2021 and, on May 27, 2021, a stipulation of discontinuance was entered as against GlobalFoundries. Meanwhile, plaintiff sent copies of the amended summons and complaint to Applied Materials, Inc. (hereinafter Applied) on March 30, 2021, advising the company that it “is the John Doe Company set forth in the complaint; as at the time [the complaint] was filed [plaintiff] did not know the proper corporate name of the employer.” Plaintiff then served the Secretary of State as agent for Applied on April 1, 2021 (see Business Corporation Law §306). On May 18, 2021 counsel for Applied requested an extension of time in which to answer, with a 60-day extension granted by counsel for plaintiff. Presently before the Court is (1) Applied’s pre-answer motion to dismiss the action as against it based upon expiration of the statute of limitations (see CPLR 3211 [a] [5]); and (2) plaintiff’s cross motion for leave to file and serve a second amended complaint, nunc pro tunc (see CPLR 3025 [b]). Turning first to Applied’s motion to dismiss, under CPLR 214 (5) a three-year statute of limitations applies to personal injury actions. Applied contends that, because the car accident occurred on October 13, 2017, the statute of limitations expired on October 13, 2020 — prior to the date of filing of the amended summons and complaint naming John or Jane Doe Company. Applied further contends that the pleadings were not properly amended in any event. In this regard, CPLR 3025 (a) provides that “[a] party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it.” According to Applied, the summons and complaint were served on Rengasamy and PV Holding on October 13, 2020 and, to date, no answer has been served. As a result, the last day upon which to amend the pleading without leave of court was November 2, 2020 — almost two months prior to the date of filing of the amended summons and complaint. In opposition, plaintiff contends that the statute of limitations was tolled by a series of executive orders issued by former Governor Andrew Cuomo as a result of the COVID-19 pandemic. More specifically, plaintiff contends that the statute of limitations was tolled from March 20, 2020, when the first executive order was issued, to November 3, 2020, when the last executive order expired — for a total of 228 days. As such, according to plaintiff the statute of limitations expired on June 5, 2021 — not October 13, 2020. Plaintiff fails to proffer any argument in her papers as to why filing of the amended summons and complaint was proper, instead stating that “[i]n an abundance of caution, [she] has submitted a cross-motion to file a second amended complaint nunc pro tunc which specifically names Applied…as a named defendant.” That being said, during oral argument on May 2, 2022 counsel for plaintiff argued that filing of the amended summons and complaint on December 28, 2020 was proper because counsel for Rengasamy and PV Holding had emailed requesting an extension of time to answer and as such, the period of time for responding had not yet expired. The Court requested a copy of this email and then provided counsel for Applied with an opportunity to respond.2 At the outset, the Court finds that the statute of limitations was tolled for a period of 228 days. In Brash v. Richards (195 AD3d 582 [2021]) (hereinafter Brash), the Appellate Division, Second Department found that “the subject executive orders tolled the time limitation[s]” contained in the CPLR (id. at 585), and that the Governor was authorized under Executive Law §29-a (2) (d) to toll these time limitations (see id. at 584-585). Applied contends that this Court is not bound by the decision in Brash but — because no other Appellate Division has issued a decision on the issue — Applied is incorrect (see Mountain View Coach Lines v. Storms, 102 AD2d 663, 664 [1984]). That being said, the Court notes that 228 days from October 13, 2020 is May 31, 2021 — not June 5, 2021. The statute of limitations thus expired on May 31, 2021. The Court further finds that filing of the amended summons and complaint on December 28, 2020 without leave of court was improper. More than 20 days had passed since service of the summons and complaint on Rengasamy and PV Holding, with no responsive pleadings having been served. Moreover, no extension of time to answer had been requested at the time of filing of the amended summons and complaint. In this regard, the email submitted by counsel for plaintiff after oral argument demonstrates that he was not contacted by counsel for Rengasamy and PV Holding until January 27, 2021 — nearly one month after filing of the amended summons and complaint. In the email — sent in follow up to a telephone call that same day — counsel for Rengasamy and PV Holding confirms that he “has just been contacted in [the] matter” and “appreciate[s counsel for plaintiff] granting [him] 14 days…to appear and respond” to the amended summons and complaint.3 Under the circumstances, the Court finds that the requirements of CPLR 3025 (a) were not satisfied. Plaintiff should have made a motion pursuant to CPLR 3025 (b) for leave to file the amended summons and complaint. That being said, the Court now turns to the cross motion. According to plaintiff, she is entitled to file a second amended complaint naming Applied as a defendant notwithstanding that the statute of limitations expired on May 31, 2021. In this regard, plaintiff contends that “Applied…and its attorneys were aware of the occurrence out of which the lawsuit arose well before [the statute of limitations expired], and cannot claim any prejudice or surprise which would prevent…application of CPLR 203 (f), New York’s ‘relation-back’ doctrine.” The relation back doctrine permits a plaintiff to amend a complaint to add a defendant even though the statute of limitations has expired at the time of amendment so long as the plaintiff can demonstrate three things: “(1) that the claims arose out of the same occurrence, (2) that the later-added [defendant] is united in interest with a previously named [defendant], and (3) that the later-added [defendant] knew or should have known that, but for a mistake by [plaintiff] as to the later-added [defendant's] identity, the proceeding would have also been brought against him or her” (Koplinka-Loehr v. County of Tompkins, 189 AD3d 2039, 2042 [2020], quoting Matter of Sullivan v. Planning Bd. of the Town of Mamakating, 151 AD3d 1518, 1519-1520 [2017] [citations omitted], lv denied 30 NY3d 906 [2017]; accord Matter of Sullivan County Patrolmen’s Benevolent Assn., Inc. v. New York State Pub. Empl. Relations Bd., 179 AD3d 1270, 1271 [2020]; see CPLR 203 [f]; Buran v. Coupal, 87 NY2d 173, 178 [1995]). Significantly, plaintiff bears “the burden of ‘show[ing] that the action [is] permitted to continue under the relation back doctrine’” (Fasce v. Smithem, 188 AD3d 1542, 1543 [2020], quoting Branch v. Community Coll. of the County of Sullivan, 148 AD3d 1410, 1410 [2017], lv denied 29 NY3d 911 [2017]; see NYAHSA Servs., Inc., Self-Ins. Trust v. People Care Inc., 167 AD3d 1305, 1307 [2018]). Here, there is no question that the claims against Applied arose out of the same occurrence, namely the October 2017 car accident. Plaintiff has therefore satisfied the first prong of the inquiry. The second prong, however, is more problematic. Plaintiff alleges that Rengasamy was an employee of Applied at the time of the accident and, further, that the accident occurred in the course of his employment with Applied. While plaintiff has not submitted any evidentiary proof in support of these allegations, Applied has not denied them. Assuming arguendo that they are true, then Rengasamy and Applied are likely united in interest (see Fasce v. Smithem, 188 AD3d at 1544; De Sanna v. Rockefeller Ctr., Inc., 9 AD3d 596, 598-599 [2004]). That being said, proper service upon the previously named defendant is crucial to satisfaction of the second prong of the inquiry (see LeBlanc v. Skinner, 103 AD3d 202, 209 [2012]; Buran v. Coupal, 87 NY2d at 182). Here, Rengasamy was served pursuant to Vehicle and Traffic Law §253, which provides as follows: “1. The use or operation by a non-resident of a vehicle in this state…shall be deemed equivalent to an appointment by such non-resident of the secretary of state to be his true and lawful attorney upon whom may be served the summons in any action against him, growing out of any accident or collision in which such non-resident may be involved while using or operating such vehicle in this state…. “2. A summons in an action described in this section may issue in any court in the state having jurisdiction of the subject matter and be served as hereinafter provided. Service of such summons shall be made by mailing a copy thereof to the secretary of state at his office in the city of Albany, or by personally delivering a copy thereof to one of his regularly established offices, with a fee of ten dollars, and such service shall be sufficient service upon such non-resident provided that notice of such service and a copy of the summons and complaint are forthwith sent by or on behalf of the plaintiff to the defendant by certified mail or registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending,…an affidavit of compliance herewith,…and either a return receipt purporting to be signed by the defendant or a person qualified to receive his certified mail or registered mail…or, if acceptance was refused by the defendant or his agent, the original envelope bearing a notation by the postal authorities that receipt was refused, and an affidavit by or on behalf of the plaintiff that notice of such mailing and refusal was forthwith sent to the defendant by ordinary mail; or, if the registered or certified letter was returned to the post office unclaimed, the original envelope bearing a notation by the postal authorities of such mailing and return, an affidavit by or on behalf of the plaintiff that the summons was posted again by ordinary mail and proof of mailing certificate of ordinary mail.…The foregoing papers shall be filed within thirty days after the return receipt or other official proof of delivery or the original envelope bearing a notation of refusal, as the case may be, is received by the plaintiff. Service of process shall be complete when such papers are filed.” Plaintiff has submitted the affidavit of service with respect to Rengasamy, which indicates that the Secretary of State was personally served with the summons and complaint on October 13, 2020 — with the $10.00 fee being paid — and that “[a] copy of said documents along with notification of service was also mailed to [Rengasamy by] certified mail, return receipt requested.” This affidavit of service was filed on November 6, 2020. Plaintiff, however, has not submitted a return receipt signed by Rengasamy or someone qualified to receive his mail, nor has plaintiff submitted proof that the certified mailing was refused or returned and the required documents then sent to Rengasamy by ordinary mail. Plaintiff has thus failed to establish proper service upon Rengasamy under Vehicle and Traffic Law §253 (see Lancer Ins. Co. v. PK Trucking, 64 Misc 3d 1201[A], 2019 NY Slip Op 50955[U], *2 [Civ Ct, NY County 2019]; Executive Ins. Co. v. Yeshiva Mikdash Melech, 164 Misc 2d 764, 768 [Civ Ct, Kings County 1995]; Ellis v. Riley, 53 Misc 2d 615, 617 [Sup Ct, Kings County 1967]). It appears that PV Holding was properly served under Business Corporation Law §305 (a), but it is unclear how PV Holding is united in interest with Applied. Indeed, plaintiff makes no indication what — if any — interest the two share. There thus exists the possibility that they share no interest at all; PV Holding could have rented the vehicle to Rengasamy for personal use, unaware that he was using it in the course of his employment with Applied. In this regard, it should be noted that counsel for Rengasamy and PV Holding indicated during oral argument that PV Holding is a nominal title holder of vehicles for Avis Car Rental. Under the circumstances, the Court finds that plaintiff has failed to satisfy the second prong of the inquiry. The Court further finds that plaintiff has failed to satisfy the third prong of the inquiry. Plaintiff’s failure to timely commence an action against Applied “‘was not the result of a mistake [of fact] or an inability to identify the correct defendant within the applicable limitations period’” (Fasce v. Smithem, 188 AD3d at 1544, quoting Contos v. Mahoney, 36 AD3d 646, 647 [2007]; accord Branch v. Community Coll. of the County of Sullivan, 148 AD3d at 1411). Rather, plaintiff identified Applied well within the applicable limitations period. She simply failed to follow the proper procedure to add Applied as a defendant in the action. “Such mistake…is a mistake of law, which is not contemplated by the relation back doctrine” (Matter of Sullivan County Patrolmen’s Benevolent Assn., Inc. v. New York State Pub. Empl. Relations Bd., 179 AD3d 1270, 1271 [2020]; see Windy Ridge Farm v. Assessor of Town of Shandaken, 45 AD3d 1099, 1099 [2007], affd 11 NY3d 725 [2008]). Plaintiff has therefore failed to demonstrate the applicability of the relation back doctrine and is not entitled to file a second amended complaint. Based upon the foregoing, Applied’s motion to dismiss the action as against it is granted and, further, plaintiff’s cross motion for leave to file and serve a second amended complaint nunc pro tunc is denied. Counsel for the remaining parties are hereby directed to appear for a conference on June 21, 2022 at 10:30 A.M., which conference will be conducted virtually using Microsoft Teams. Therefore, having considered NYSCEF document Nos. 12 through 20, 29 through 32, and 35 through 37, and oral argument having been heard on May 2, 2022 with Joseph T. Perkins, Esq. appearing on behalf of plaintiff, Brian D. Roy, Esq. appearing on behalf of Rengasamy and PV Holding, and John A. Anselmo, Esq. appearing on behalf of Applied, it is hereby ORDERED that Applied’s motion to dismiss the action as against it is granted; and it is further ORDERED that plaintiff’s cross motion for leave to file and serve a second amended complaint nunc pro tunc is denied; and it is further ORDERED that counsel for the remaining parties shall appear for a conference on June 21, 2022 at 10:30 A.M., which conference will be conducted virtually using Microsoft Teams. The original of this Decision and Order has been e-filed by the Court. Counsel for Applied is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: May 18, 2022
