Kitson v. Atlantic Refining & Marketing Corp.

227 A.D.2d 971, 643 N.Y.S.2d 862, 1996 N.Y. App. Div. LEXIS 6905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 1996
• Status: Published

Opinion

Order unanimously reversed on the law without costs, motions granted and complaint against defendants Larry E. Tyree Co., Inc., and Mark A. Todd, doing business as The Todd Company, dismissed. Memorandum: Plaintiff was injured on February 14, 1991 when he fell on premises owned and operated by defendants Atlantic Refining & Marketing Corporation (Atlantic) and Petroleum Marketing Services Corp. (Petroleum Corp.). On July 19, 1993, plaintiff commenced an action against Atlantic and Petroleum Corp. The title of the action also named “John Doe Excavators, Inc.” as an unknown entity that had “completed certain excavation work” at the Atlantic and Petroleum Corp. premises. Plaintiff never obtained a court order for a substitute form of service upon John Doe Excavators, Inc. (John Doe). In January 1995 plaintiff discovered the identity of John Doe. On February 6, 1995, plaintiff obtained an ex parte order permitting plaintiff to amend the caption in the summons and complaint to identify John Doe as Larry E. Tyree Co., Inc. (Tyree) and Mark A. Todd, doing business as The Todd Company (Todd). A copy of the amended summons and complaint was left at Todd’s office on February 13, 1995. Mark Todd, who was then living in Nevada, was never personally served. Tyree was served with the amended summons and complaint on February 17, 1995.

Supreme Court erred in denying the motions of defendants Tyree and Todd to dismiss the complaint against them. Plaintiff’s action against Tyree and Todd was not commenced within the statutory three-year period for negligence actions (see, CPLR 214 [5]; Di Marco v Hudson Val. Blood Servs., 147 AD2d 156, 157). Plaintiff’s claims against Tyree and Todd do not relate back to the timely action commenced against the two known defendants (see, CPLR 203 [b]) because they are not united in interest (see, Mondello v New York Blood Ctr.— Greater N. Y. Blood Program, 80 NY2d 219). Codefendants are united in interest only when one defendant is responsible for the acts or omissions of the other (see, Capital Dimensions v Oberman Co., 104 AD2d 432, 433). It is uncontroverted that Tyree and Todd were independent contractors retained by Atlantic and Petroleum Corp. to perform specified services. An independent contractor and the party who retains him are not united in interest because the latter is not vicariously liable for torts of the former (McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C203:3, at 147). (Appeals from Order of Supreme Court, Erie County, Notaro, J. — Dismiss Complaint.) Present — Pine, J. P., Fallon, Callahan and Davis, JJ.