Battle v. Brookhaven Nursing Home

7 A.D.3d 553, 776 N.Y.S.2d 495, 2004 N.Y. App. Div. LEXIS 6883

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2004
• Status: Published

Opinion

In an action, inter aha, to recover damages for wrongful death, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Golar, J.), dated April 15, 2003, as denied that branch of her motion which was for leave to supplement the summons and amend the complaint to add Brookhaven Beach Health Related Facility as an additional defendant.

Ordered that the order is affirmed insofar as appealed from, with costs.

“The joinder of an additional defendant by the filing of a supplemental summons and. amended complaint may be accomplished only with prior judicial permission, and noncompliance renders the pleadings jurisdictionally defective” (Perez v Paramount Communications, 92 NY2d 749, 753 [1999]; see CPLR 1003). Here, the Supreme Court properly denied that branch of the plaintiffs motion which was for leave to supplement the summons and amend the complaint to add Brookhaven Beach Health Related Facility as an additional defendant since the applicable statute of limitations had expired when the Supreme Court denied the motion. The plaintiffs motion did not toll the statute of limitations as the plaintiff did not file a copy of the proposed supplemental summons and amended complaint with the Supreme Court when she filed her motion (see Matter of Lodge v D'Aliso, 2 AD3d 525, 526 [2003], lv denied 2 NY3d 702 [2004]; cf. Perez v Paramount Communications, supra at 754-755). Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.