The following numbered papers were read on this motion: NYSCEF Doc No. 38: Notice of Motion to Amend NYSCEF Doc No. 39: Affirmation of Jared B. Dubin, Esq. in Support of Motion NYSCEF Doc No. 40: Summons and Verified Complaint NYSCEF Doc No. 41: Answers of Defendants Chick-Fil-A, Inc. and Crown 144 Fulton LLC NYSCEF Doc No. 42: Consent to Change Attorney NYSCEF Doc No. 43: Proposed Supplemental Summons and Amended Verified Complaint NYSCEF Doc No. 45: Affirmation in Opposition of Alissa A. Mendys, Esq. NYSCEF Doc No. 46: Statement of Authorization for Electronic Filing NYSCEF Doc No. 47: Stipulation to Adjourn Motion NYSCEF Doc No. 48: Denial of Stipulation to Adjourn Motion NYSCEF Doc No. 49: Transcript of Oral Argument of Motion DECISION AND ORDER Upon the foregoing papers, having heard oral argument on the record from appearing counsel, and due deliberation having been had thereon, the within motion is determined as follows. Preamble This premises liability action gives rise to an oft-recurring paradigm. In the midst of the case, it dawns on the plaintiff that she or he has failed to name an entity as a defendant within the statute of limitations, culminating in a motion to amend the summons and complaint to add such entity as a defendant on the basis that the claims sought to be asserted against the entity relate back to the claims previously asserted against the original defendants for statute of limitations purposes. Hewing closely to this well-worn framework, the parties’ submissions herein focus exclusively on the applicability of the relation back doctrine to the case. Engulfed in the relation back vortex, the parties eschewed more prosaic core outcome-determinative issues. As shall appear, Plaintiff’s motion to amend is bereft of merit on two independent grounds beyond the relation back doctrine, neither of which grounds the parties explored in their copious papers or during oral argument. In short, the motion to amend is unavailing on three independent bases, two of which were overlooked by the parties. This motion should serve as a cautionary tale. Parties briefing a motion should refrain from focusing exclusively on a single beguiling issue, lest ostensibly mundane, albeit pivotal, issues be overlooked. Threshold Issue The Court is constrained to grapple with a threshold issue of a procedural nature raised by Defendant Crown 144 Fulton LLC and the non-party prospective Defendant Melbo Franchise Holdings, Inc. (collectively, the “Crown-Melbo Entities”). The parties in question posit that Plaintiff Symonia Bernard-Moses’s (“Plaintiff”) instant motion to amend is but a duplicate of a motion to amend the summons and complaint previously filed by Plaintiff, which latter motion was marked off on June 23, 2023, owing to Plaintiff’s counsel’s failure to appear for oral argument before this Part (see NYSCEF Doc No. 49, Transcript of Oral Argument at 18, line 12, through 19, line 17). The Crown-Melbo Entities maintain that when Plaintiff’s initial motion to amend was marked off on June 23, 2023, it was incumbent on Plaintiff to move to restore such motion to the calendar, rather than file the instant clone motion: MS. JOHN: That was going to be my next point, your Honor, is that plaintiff just re-filed the same exact motion when it was marked off without going through the proper channels of having his original motion heard. (Id. at 19, lines 7-10.) Albeit ostensibly cogent, the argument in question is at odds with Second Department precedent cited by neither party. In a case in which the plaintiffs’ counsel, as here, after failing to appear on the return date of its motion, resulting in the motion being marked off, filed the motion anew, the Second Department gave its imprimatur to this procedural approach as follows: Finally, we would note that the failure of plaintiffs’ counsel to appear in support of the initial motion to serve a late notice of claim (CPLR 2216), which resulted in its being marked off the calendar pursuant to local court rule (22 NYCRR 752.11 [c]), did not bar a second motion. The order marking the case off the calendar did not operate to establish the law of the case (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 2216:3, p 114; cf. Aridas v. Caserta, 41 NY2d 1059, 1061). (Lewis v. New York City Tr. Auth., 100 AD2d 896, 869 [2d Dept 1984].) As Justice Jack M. Battaglia of the Kings County Supreme Court held, echoing the Second Department’s holding in Lewis: When a motion is marked off the calendar, generally the movant may simply refile and re-serve the motion. (See e.g. Lewis v. New York City Transit Authority, 100 AD2d 896, 896 [2d Dept 1984] [failure of counsel to appear in support of initial motion, which resulted in motion being marked off pursuant to local rule, did not bar a second motion].) (Pallotta v. Saltru Assoc. Joint Venture, N.Y., 32 Misc 3d 1208[A], 2011 NY Slip Op 51209[U], *2 [Sup Ct, Kings County 2011].) In short, this Court finds unavailing the Crown-Melbo Entities’ endeavor to obtain the denial of Plaintiff’s present motion to on the ground that after Plaintiff’s initial motion to amend was marked off the calendar, she opted to file the motion anew rather than move to restore the initial motion to the calendar. The Occurrence Plaintiff alleges that on March 12, 2019, at approximately 10:00 p.m., while at a Chick-Fil-A restaurant located at 144 Fulton Street, in New York County (“Premises”), she slipped and fell as a result of a dangerous and slippery condition on account of Defendants’ negligence in failing to maintain the Premises in a safe condition (see NYSCEF Doc No. 40, Complaint
48-49). The Protagonists’ Interrelationships This action features entities whose roles are interwoven as follows: The Premises were owned by Defendant Crown 144 Fulton LLC (“Defendant Landlord Crown”) (see NYSCEF Doc No. 10, Answer 78). Before the March 12, 2019 occurrence, Defendant Chick-Fil-A, Inc. (“Defendant Tenant Chick-Fil-A”), a national fast-food chain, leased the Premises from Defendant Landlord Crown (see NYSCEF Doc No. 41, Answer 32). In turn, prior to the March 12, 2019 occurrence, Defendant Tenant Chick-Fil-A subleased the Premises to, and entered into a franchisorfranchisee agreement with, the non-party prospective Defendant Melbo Franchise Holdings, Inc. (“Prospective Defendant Sublessee Melbo”), the franchisee and operator of the Chick-Fil-A branded restaurant (see id.). In sum, Prospective Defendant Sublessee Melbo, the operator of a Chick-Fil-A franchise at the Premises when the March 12, 2019 accident allegedly occurred, was a subtenant of Defendant Tenant Chick-Fil-A, who in turn was a tenant of Defendant Landlord Crown. Plaintiff’s Belated Discovery of the Central Role Potentially Played by Prospective Defendant Sublessee Melbo Plaintiff filed a summons and verified complaint on March 3, 2022, naming two defendants, namely, Defendant Tenant Chick-Fil-A and Defendant Landlord Crown (see NYSCEF Doc No. 40, Complaint
