O'Connor v. West

124 A.D.2d 1050, 508 N.Y.S.2d 744, 1986 N.Y. App. Div. LEXIS 62408

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1986
• Status: Published

Opinion

Special Term properly denied plaintiff’s cross motion. Since the sufficiency of the amended complaint was not an issue decided in the prior motion, there was no need to transfer the case to the Justice who had heard that motion under CPLR 2221.

Special Term erred, however, in ruling that the slander cause of action as alleged in the amended complaint was time barred. Since the allegations in the amended complaint refer to the same parties and the same incident as alleged in the original complaint, the original complaint gave ample notice to defendant Dr. West "of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading” (CPLR 203 [e]). Thus, the slander cause of action in the amended complaint is deemed to have been interposed on September 29, 1983 when the claim in the original pleading was made (see, Caffaro v Trayna, 35 NY2d 245; Johnson v Phillips, 115 AD2d 299; Dooley v Bacardi Imports, 98 AD2d 993; Citibank v Suthers, 68 AD2d 790). Since this is within one year from the December 1, 1982 incident in question, the slander cause of action against defendant Dr. West as alleged in the amended complaint should not have been dismissed as untimely, and that cause of action must be reinstated. (Appeal from order of Supreme Court, Erie County, Joslin, J. — referral of motion.) Present— Dillon, P. J., Callahan, Denman, Green and Lawton, JJ.