Recitation as required by CPLR §2219[a] of the papers considered: Papers NYSCEF Numbers Plaintiff’s Motion/Order to Show Cause/Petition/Cross Motion 7-18; 35-45 Defendant Shell Drive, LLC’s Opposition papers 58-65; 20 Plaintiff’s Reply to opposition 170-174 DECISION/ORDER Upon the foregoing papers, Defendant Shell Drive, LLC (Shell Drive), pursuant to CPLR §3012(d), moves for an Order to extend the time to appear and, pursuant to CPLR §§3211(a)(5) and (a)(8), to dismiss Plaintiff’s complaint with prejudice (Motion Sequence 2). Plaintiff Yvonne Needham (Plaintiff) moves for an Order: (1) pursuant to CPLR §§3025(b) and/or 305(c) to amend the caption to separate Shell Drive, LLC as a separate and distinct defendant; (2) pursuant to CPLR §§3025(b) and/or 305(c) to amend the summons and complaint to reflect the change in the case caption; (3) to deem the original summons and verified complaint and first amended summons and amended verified complaint timely served nunc pro tunc; and/or (4) in the alternative, pursuant to CPLR §§306-b and/or 2004, extending Plaintiff’s time to serve Shell Drive, LLC and granting leave to serve process on all attorneys appearing for defendants (Motion Sequence 4).1 BACKGROUND Plaintiff commenced the instant action on December 16, 2019 against Defendants The City of New York (City) and Ocean Shell, LLC by filing of a summons and verified complaint. See NYSCEF Doc. # 1. According to the complaint, on or about September 26, 2018, Plaintiff alleges she was on the sidewalk in front of 2955 Shell Road, next to the tree well, at or near its intersection with Neptune Avenue in Brooklyn, New York. See id.2 At approximately 2:50 p.m., Plaintiff claims that she tripped and fell while walking because of a defect condition in said sidewalk. See id. at 27. Plaintiff asserts that she sustained serious personal injuries resulting from the trip and fall. See id. at 28. Plaintiff subsequently commenced another action on July 14, 2021 (Index No. 517413/2021) by the filing of a summons and verified complaint against 2955 Shell Associates, LLC (2955 Shell Associates) for injuries sustained from the same trip and fall. See NYSCEF Doc. # 22. On October 21, 2021, Plaintiff filed an amended summons and verified complaint modifying the name of Defendant to 2955 Shell Associates, LLC, a/k/a and d/b/a 2955 Shell Road Corporation, a/k/a and d/b/a Shell Drive, LLC. See NYSCEF Doc. # 23. Ocean Shell, LLC moved to consolidate the second action into the instant action (Motion Sequence 1). By Order dated February 1, 2023, the Court granted the motion, consolidated the second action into the first action, and amended the caption. See NYSCEF Doc. # 19. Shell Drive did not appear until the filing of the instant motion. DISCUSSION a. Defendant Shell’s Motion to Extend Time to Appear and to Dismiss the Complaint In support of its motion, Shell Drive contends that it was not named as a defendant in the instant suit until October 21, 2021, when Plaintiff filed the amended verified complaint in the second action, over three years after the alleged fall occurred. See NYSCEF Doc. # 9.3 Shell Drive argues that Plaintiff’s claim is thus barred by the applicable three-year statute of limitations. See id. The second action was commenced against 2955 Shell Associates as the purported owner of the premises at 2957 Shell Road which premises abutted the sidewalk where plaintiff claims she fell. See id. at 7-8. Plaintiff never served the summons and verified complaint. See id. at 9. Prior to the expiration of Plaintiff’s time to serve the summons and complaint pursuant to CPLR §306- b, Plaintiff filed an amended verified complaint and added two Defendants, 2955 Shell Road Corporation (2955 Corporation) and Shell Drive. Shell Drive was served, for the first time, with any summons and complaint only after the applicable statute of limitations expired. Pursuant to CPLR §3012(d), Shell Drive contends that it has a reasonable excuse and meritorious defense to extend its time to appear. Although the amended complaint was served on the New York Department of State (NYDOS) for Shell Drive on October 29, 2021, Shell Drive did not receive the amended summons and verified complaint NYDOS until January 2022. See id. at 13; see also NYSCEF Doc. # 12.4 An affidavit of service was filed with the court purporting to serve the NYDOS, as well as an affidavit claiming to have served Shell Drive on November 9, 2021 by serving someone named Mr. Avi, a person designated to receive process. However, Robert Hoffman of Shell Drive, avers that it does not have any agent or employee by that name and never received the amended summons and verified complaint on November 9, 2021 as alleged. See id. at 15. Shell Drive asserts that it was unable to serve an answer until January 2022, when it first received the amended summons and complaint in January 2022. See id. at 16. On April 7, to be a typo as Neptune Avenue not Neptune Street intersects with 2955 Shell Road. 2022, Shell Drive filed its instant motion to extend its time to appear. Although Plaintiff filed the complaint in the second action on July 14, 2021, within the applicable statute of limitations, she did not file the amended verified complaint to add Defendant Shell Drive until October 21, 2021, after the expiration of the statute of limitations. See id. Shell Drive states that it purchased the subject property from 2955 Shell Associates on September 18, 2007, and sold it on December 2, 2021 to 2957 Shell Road QOZ LLC. See id. at 20-21.5 Shell Drive argues that it is not affiliated with 2955 Shell Associates, they are unrelated entities and do not share members, officers, employees, or office space. See id at 22-23. Shell Drive further asserts that Plaintiff’s cause of action against it is time-barred as the statute of limitations began to run on September 26, 2018 and expired on September 26, 2021. See NYSCEF Doc. # 17 at 5.6 Shell Drive also argues that the amended verified complaint does not relate back to the filing date of Plaintiff’s timely original summons and complaint in the second action. See id at 5-6. Shell Drive asserts that Plaintiff cannot satisfy her burden of the second prong of the relation-back doctrine that the parties are united in interest because there is no legal relationship between 2955 Shell Associates and Shell Drive as they do not share any ownership interest in one another. See id at 6-7. Shell Drive notes that the only dealing between the two entities is a real estate transaction in 2007 concerning the subject property, 11 years prior to the alleged trip and fall. See id. Lastly, pursuant to CPLR §3211(a)(8), Shell Drive claims that the amended verified complaint should be dismissed since Plaintiff failed to obtain leave of court to amend the original complaint. See id at 7. In opposition, Plaintiff states that before the original summons and complaint were served in the second action, Plaintiff realized that there were parties not listed in the caption that counsel believed to be related, and therefore Plaintiff filed an amended summons and amended complaint to include the other defendants. See NYSCEF Doc. # 58 at 6.7 Plaintiff asserts that the summons and complaint were amended within the 120-day statute of limitations to serve process under CPLR §306-b. See id. Plaintiff filed an amended summons and complaint to add Shell Drive as Plaintiff’s counsel claims that he made the mistake of naming the grantor as the sole Defendant in the original summons and complaint instead of the grantee and owner of 2957 Shell Road at the time of the fall. See id. On October 29, 2021, Plaintiff then served the amended summons and complaint on Shell Drive by serving the NYDOS and Mr. Avi, a person designated to receive process. See id.; see also See NYSCEF Doc. #s 3-6, 61 and 62.8 Plaintiff highlights that 2955 Shell Associates, LLP purchased the property in 1994, then transferred it to Defendant 2955 Shell Associates by deed dated June 29, 2000. See id. at 9. On September 18, 2007, 2955 Shell Associates then transferred the property to Shell Drive who sold the property to 2957 Shell Road QOZ, LLC on December 29, 2021. See id. According to the Plaintiff, the pattern of deed transfers to many different companies with the words Shell, Shell Road, Shell Road QOZ, and Shell Associates, demonstrated to Plaintiff that the companies are very likely related. See id at 10. Plaintiff then amended the caption to change the Defendant to 2955 Shell Associates, LLC, A/K/A and D/B/A 2955 Shell Road Corporation, A/K/A and D/B/A Shell Drive, LLC (id.). Plaintiff asserts that since Shell Drive contends that it is not related to 2955 Shell Associates D/B/A 2955 Shell Road Corporation, Plaintiff moved to amend the caption and summons and complaint to separate Shell Drive as its own separate and distinct Defendant to correct Plaintiff’s unintentional and unprejudicial error (Motion Sequence 4). See id at 11. Plaintiff claims that Shell Drive’s time-barred argument is without merit because the original summons and complaint in the second action was filed within the three-year limitations period and the amended summons and complaint was filed and served within the 120-day time period to serve process of the original complaint. See id at 12. Alternatively, Plaintiff argues that in the event the Court deems service on Shell Drive was outside of the limitations period, the amended summons and complaint does relate back to the original summons and complaint in the second action. See id. Additionally, Plaintiff contends that if the Court deems Shell Drive was served outside of the limitations period and the amended summons and complaint does not relate back, then Plaintiff should be granted an extension of time to serve Shell Drive. See id. In support of its contention that the relation-back doctrine applies, Plaintiff argues that all three prongs are satisfied. First, Plaintiff notes that the claims in the original complaint and amended complaint filed in the second action arise out of the same trip and fall. See id at 21. Second, Plaintiff asserts that Shell Drive is united in interest with 2955 Shell Associates because they both were owners of the property and entered into an agreement to transfer the deed in 2007. See id at 22. Additionally, Plaintiff argues that there is a question of fact as to whether 2955 Shell Associates has any relationship with Shell Drive and the other companies based on the pattern of conveyances for the property on Automated City Register Information System (ACRIS) over the years. See id at 22. Plaintiff asserts that the pattern of deed transfers to many different companies with similar names gave Plaintiff a reasonable inference that the companies in question are, in fact, related to each other and united in interest. Third, Plaintiff alleges that Shell Drive knew or should have known, but for Plaintiff’s mistake of the identity of the proper parties, that the second action would be brought against them as well. See id at 23. Plaintiff also contends that Shell Drive’s motion should be denied as it did not provide a reasonable excuse or meritorious defense to excuse its default in appearing or answering. See id at 25. In reply, Shell Drive asserts that it has established a reasonable excuse for the delay and a meritorious defense to the action. See NYSCEF Doc. # 67 at 1.9 Shell Drive argues that although the NYDOS was served with the amended summons and complaint on October 29, 2021, NYDOS waited until January 4, 2022 to send the pleadings to Shell Drive thereby making it impossible for it to respond by the November 29, 2022 deadline. See id at 2. Shell Drive also contends that it has a meritorious defense as it was not named as a defendant during the applicable statute of limitations period See id at 4-5. Additionally, Shell Drive claims that Plaintiff cannot satisfy the second and third prongs of the relation-back doctrine, as it “does not share the exact same jural relationship with 2955 Shell Associates” and is a separate entity with a distinct defense. See id at 6. Shell Drive further argues that Plaintiff’s conclusory and speculative assertion that Shell Drive and 2955 Shell Associates are united in interest on the basis that they were on the same deed is “nonsensical” and Plaintiff failed to demonstrate that they are united in interest sufficient to salvage plaintiff’s claims against Shell Drive. See id. Lastly, Shell Drive argues that the third prong cannot be satisfied as there was no discernable reason that it knew or should have known that, but for plaintiff’s mistake to name the proper parties, the action would have been brought against it as well. See id. b. Plaintiff’s Motion to Amend Caption and Extend Time to Serve Plaintiff seeks leave to amend her pleadings pursuant to CPLR §3025(b), to add Shell Drive as a separate and distinct Defendant. Plaintiff notes that Shell Drive was the owner of the subject property when she tripped and fell and is thus a necessary and proper party to the instant consolidated action. See NYSCEF Doc. # 36 at 8.10 Plaintiff argues that the proffered amendment is neither palpably insufficient nor clearly devoid of merit as Plaintiff failed to name Shell Drive in the original summons and complaint in error. See id at 28. Plaintiff further asserts that, were the motion granted, there would be no prejudice to Shell Drive. See id at 29. She argues that CPLR §305(c) permits Plaintiff to amend the summons to allow a misnomer in the description of a party defendant to be cured. See id at 32. Additionally, Plaintiff requests the Court deem the original summons and complaint and amended summons and complaint served, nunc pro tunc, on Shell Drive. See id at 36. Alternatively, Plaintiff seeks permission to extend her time to serve process pursuant to CPLR §306-b in the event the Court finds Defendants were not timely served. See id at 39. In opposition, Shell Drive notes that Plaintiff commenced her action against an entity that has no relation to it and only filed and served a pleading adding Shell Drive as a defendant after the statute of limitations expired See NYSCEF Doc. # 20 at 3. Shell Drive contends that Plaintiff’s “kitchen sink” motion is a stark admission of the fatal defects in Plaintiff’s original pleading and amended complaint and argues that dismissal is warranted since it was not named or served within the applicable statute of limitations period. See id at 4. Shell Drive therefore asserts that leave to amend pursuant to CPLR §3025 should be denied as Plaintiff’s claims are barred by the statute of limitations. See id at 40. It further argues that the relief sought pursuant to CPLR §305(c) should also be denied as Plaintiff did not misname Shell Drive and the purpose of the statute is to correct the misnaming of an existing defendant, not to add a new defendant. See id at 43. In reply, Plaintiff restates many of the same arguments she raised in support of her instant motion and in opposition to Shell Drive’s motion. Discussion CPLR §3025(b) provides that: “[a] party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading”. CPLR §3025(b); see Metwally v. City of New York, 215 AD3d 820, 824 (2d Dept 2023). “In the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit”. Metwally, 215 AD3d at 724, quoting Lomeli v. Falkirk Mgt. Corp., 179 AD3d 660, 664 (2d Dept 2020). “The party opposing the application has the burden of establishing prejudice, which requires a showing that the party has been hindered in the preparation of its case or has been prevented from taking some measure in support of its position”. Id. “The determination to permit or deny amendment is committed to the sound discretion of the trial court”. Sage v. Neil H. Greenberg and Associates, P.C., 2023 NY Slip Op 04787, *2 (2d Dept 2023); see Marcum, LLP v. Silva, 117 AD3d 917, 917 (2d Dept 2014). “An amendment that seeks to add a cause of action which is time-barred by the applicable statute of limitations is patently devoid of merit” (id.); see Roco G.C. Corp. v. Bridge View Tower, LLC, 166 AD3d 1031 (2d Dept 2018). However, if a plaintiff seeks leave to serve a supplemental summons and amended complaint to add a defendant after the expiration of the relevant statute of limitations, the plaintiff is required to demonstrate the applicability of the relation-back doctrine. see Leung v. Port Authority of New York and New Jersey, 204 AD3d 654, 655 (2d Dept 2022); Cedarwood Associates, LLC v. County of Nassau, 211 AD3d 799 (2d Dept 2022); Kammerzell v. Clean Burn, Inc., 165 AD3d 768 (2d Dept 2018). “The relation-back doctrine allows causes of action asserted against a new defendant in an amended complaint to relate back to the cause of action previously asserted against a codefendant in the same action for statute of limitations purposes”. Wilson v. Rye Family Realty, LLC, 218 AD3d 836, 836 (2d Dept 2023); see Buran v. Coupal, 87 NY2d 173 (1995). “A plaintiff may establish the applicability of the relation-back doctrine by demonstrating that (1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his or her defense on the merits; and (3) the new defendant 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 commenced against him or her as well”. See id. “The ‘linchpin’ of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period”. See id; see also Alvarado v. Beth Israel Medical Center, 60 AD3d 981, 982 (2d Dept 2009). Here, the alleged trip and fall occurred on September 26, 2018, and the three-year statute of limitations period expired on September 26, 2021. See generally, Finck v. VL 10 1620 New Highway, LLC, 203 AD3d 892 (2d Dept 2022). Prior to the expiration of the statute of limitations, Plaintiff commenced the second action against 2955 Shell Associates on July 14, 2021. Before serving 2955 Shell Associates with the summons and complaint, and nearly one month after expiration of the applicable statute of limitations, plaintiff filed an amended summons and complaint naming Shell Drive as a defendant on October 21, 2021.11 However, the fact that a new “defendant might have been added to a pending action by virtue of an amendment that was properly carried out without leave of court does not automatically negate the validity of any statute of limitations defense the new defendant might have” since a “plaintiff who has timely interposed a claim against one defendant may yet be barred by the statute of limitations from adding a completely new defendant to the action by virtue of an amendment carried out as a matter of right”. Hirsh v. Perlmutter, 53 AD3d 597, 599 2d Dept 2008). It is evident that the amended summons and complaint in which Shell Drive was first joined as a Defendant was neither filed nor served before the expiration of the applicable statute of limitations and thus the burden shifts to Plaintiff to prove that the relation-back doctrine applies. See id. The portion of Plaintiff’s motion seeking, inter alia, to amend the caption and file a supplemental summons and amended complaint is granted. Plaintiff satisfied the first prong of the relation-back doctrine as the claims against 2955 Shell Associates and Shell Drive arose out of the same occurrence, the alleged trip and fall on September 26, 2018. Plaintiff also satisfied the second and third prongs required for the relation-back doctrine to be apply. In support of her motion, Plaintiff annexes a copy of the deed dated September 18, 2007, transferring the property from 2955 Shell Associates to Shell Drive. See NYSCEF Doc. # 42.12 Importantly, the recorded deed indicates that the transfer of property was not accomplished in an arm’s length transaction and according to the Real Property Transfer Report (RP-5217NYC), no transfer tax was paid on the conveyance as the indicated purchase price was zero. See id. at 6; see generally, Rigano v. Vibar Const., Inc., 24 NY3d 415, 421 (2014). The September 18, 2007, deed was signed on behalf of Shell Drive by manager Charles Hoffman. See id. at 3. However, a no-consideration deed dated June 29, 2000, transferring the property from prior owner 2955 Shell Associates, L.P. to Defendant 2955 Shell Associates was also signed by a Charles Hoffman as president of 2955 Shell Road Corporation on behalf of 2955 Shell Associates, L.P. See NYSCEF Doc. # 36.13 Additionally, on April 20, 2005, a Gap Mortgage was signed by Charles Hoffman, as President of 2955 Shell Road Corporation on behalf of defendant 2955 Shell Associates, with whom Shell Drive claims it is not united in interest, and recorded under City Register File No. (CRFN) 2005000345018.14 Charles Hoffman is president of a corporation that signs on behalf of 2955 Shell Associates and is also manager of Shell Drive as is evident from the documentary evidence. Since Charles Hoffman is a stakeholder in some capacity of both entities, it is apparent that Shell Drive is united in interest with 2955 Shell Associates, and by reason of that relationship, can be charged with notice of the institution of the action and will not be prejudiced in maintaining a defense on the merits. See Wilson, 218 AD3d 836 at 836 (holding that plaintiff satisfied all three prongs of the relation-back doctrine as the newly added defendant and the original defendant often blurred the distinction between them). Furthermore, Shell Drive knew or should have known that, but for a mistake by Plaintiff as to the identity of the property parties, a personal injury action would have been commenced against it since Charles Hoffman signs important legal documents as an authorized signatory for both entities. See Marcotrigiano v. Dental Specialty Associates, P.C., 209 AD3d 850, 852 (2d Dept 2022). Although an affidavit is submitted by a Robert Hoffman, as member of Shell Drive, stating that Shell Drive is not affiliated with 2955 Associates and does not share members, officers, employee, or office space, sufficient documentary evidence exists contradicting Robert Hoffman’s claim that the entities are not affiliated with one another for purposes of the relation-back doctrine. Thus, Plaintiff’s motion to amend the caption, summons and complaint is granted as it is apparent that Shell Drive had notice within the applicable limitations period of the alleged trip and fall. Shell Drive’s motion is denied in its entirety. The portion of the motion seeking to extend its time to appear in response to the amended summons and complaint is denied as moot. Plaintiff’s request for leave to file and serve a second amended complaint which supersedes the amended and original complaints is granted. Shell Drive will have an opportunity to file an answer or otherwise appear in response to the new pleading. See Seidler v. Knopf, 186 AD3d 886, 888 (2d Dept 2020). The portion of Shell Drive’s motion seeking dismissal pursuant to CPLR §3211 is likewise denied.15 Conclusion All arguments raised on the motions and evidence submitted by the parties in connection thereto have been considered by this Court, regardless of whether they are discussed herein. All relief not specifically granted have also been considered and denied. Accordingly, Shell Drive’s motion is denied in its entirety. Plaintiff’s motion is granted to the extent that Plaintiff is permitted to amend the caption, summons, and complaint and the Plaintiff is directed to serve a copy of the second amended summons and second amended verified complaint on all parties within 30 days of the entry date of this Order. Plaintiff’s motion is otherwise denied. Finally, the caption is amended as follows: YVONNE NEEDHAM, Plaintiff v. The City of New York, Ocean Shell LLC, 2955 Shell Associates LLC A/K/A and D/B/A 2955 Shell Road Corporation A/K/A and DBA Shell Drive LLC, Defendants; . 527271/2019 This constitutes the Decision and Order of the Court. Dated: November 6, 2023
