Bonanno v. City of Rye

280 A.D.2d 631, 721 N.Y.S.2d 540, 2001 N.Y. App. Div. LEXIS 1814

Opinion

—In an action, inter alia, to recover damages for negligence and false arrest, the plaintiff appeals from an order of the Supreme Court, Westchester County (Cow-hey, J.), entered March 23, 2000, which denied her motion for leave to serve and file an amended complaint to add an additional defendant, and granted the cross motion of the defendant Felice Lanne for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs to the respondent.

The plaintiff’s motion for leave to serve and file an amended complaint to add Rosemarie Lanne as a defendant was properly denied, as it was made after the expiration of the one-year Statute of Limitations under CPLR 215 (3). The causes of action against Rosemarie Lanne cannot relate back to the filing of the original complaint against her husband, Felice Lanne, as he was not properly served (see, Karczewski v Sharpe, 260 AD2d 606; Maldonado v Maryland Rail Commuter Serv. Admin., 239 AD2d 740, 741, affd 91 NY2d 467; Potamianos v Convenient Food Mart, 197 AD2d 734, 736; cf., Benware v Schoenborn, 198 AD2d 710, 711-712).

Moreover, the Supreme Court properly granted the motion of Felice Lanne for summary judgment, as he was not properly served. Santucci, J. P., Krausman, S. Miller and Smith, JJ., concur.