Tomlinson v. City of New York

Opinion

Tomlinson v City of New York

2026 NY Slip Op 04973

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Virginia Tomlinson, appellant,

v

City of New York, et al., defendants, Network Communications Technologies, Inc., et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2025-02184, (Index No. 508146/16)

Mark C. Dillon, J.P.

Deborah A. Dowling

Janice A. Taylor

James P. McCormack, JJ.

Mallilo & Grossman (Berson & Budashewitz, LLP, New York, NY [Jeffrey A. Berson], of counsel), for appellant.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colón, J.), dated November 29, 2024. The order denied the plaintiff's motion for leave to serve a second amended complaint adding Nu-Vision Technologies, LLC, doing business as Black Box Network Services, as a defendant.

ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the plaintiff's motion for leave to serve a second amended complaint adding Nu-Vision Technologies, LLC, doing business as Black Box Network Services, as a defendant is granted.

On May 26, 2015, while entering her office at the UFT Charter School located on Wyona Street in Brooklyn, the plaintiff allegedly sustained injuries when she fell "due to telephone and computer wires abutting" her office's doorway. The plaintiff subsequently commenced this action to recover damages for personal injuries against the defendants City of New York, New York City Department of Education, and another defendant. Thereafter, the plaintiff moved, inter alia, for leave to amend the complaint to add Network Communications Technologies, Inc., and Black Box Corporation of Pennsylvania as defendants. In an order dated November 3, 2017, the Supreme Court granted the plaintiff's motion.

In December 2023, the City and the New York City Department of Education provided certain discovery which revealed that they had a service contract with nonparty Nu-Vision Technologies, LLC, doing business as Black Box Network Services (hereinafter Nu-Vision), that was in effect at the location and time of the plaintiff's accident. The plaintiff then moved for leave to serve a second amended complaint adding Nu-Vision as a defendant. In an order dated November 29, 2024, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.

When a plaintiff seeks leave to amend a complaint to add a defendant after the expiration of the relevant limitations period, the plaintiff is "required to demonstrate the applicability of the relation-back doctrine" (Cedarwood Assoc., LLC v County of Nassau, 211 AD3d 799, 800; see Leung v Port Auth. of N.Y. & N.J., 204 AD3d 654, 655). In order to establish the applicability of the relation-back doctrine, a plaintiff must demonstrate that: "(1) the causes of action arose out of the same conduct, transaction, or occurrence; (2) the new party is united in interest with one or [*2]more of the original defendants, and by reason of that relationship can be charged with such notice of the institution of the action that he or she will not be prejudiced in maintaining his or her defense on the merits; and (3) the new defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been commenced against him or her as well" (Rowe v 4601 Second Ave, LLC, 229 AD3d 575, 576 [internal quotation marks omitted]; see Patrick v Comprehensive Med. Supply, LLC, 225 AD3d 777, 779). "The 'linchpin' of the relation-back doctrine is whether the new defendant had notice within the applicable limitations period" (Wilson v Rye Family Realty, LLC, 218 AD3d 836, 838 [internal quotation marks omitted]; see Uddin v A.T.A. Constr. Corp., 164 AD3d 1400, 1401).

Contrary to the Supreme Court's determination, the plaintiff demonstrated the applicability of the relation-back doctrine. As to the first prong, there is no dispute that the plaintiff sought to allege causes of action against Nu-Vision arising out of the same occurrence as the causes of action asserted in the amended complaint. The plaintiff also established the second prong, that Nu-Vision and Black Box Corporation of Pennsylvania were "united in interest," by demonstrating that, under the particular circumstances presented, Nu-Vision and Black Box Corporation of Pennsylvania "intentionally or not, often blurred the distinction between them" (Wilson v Rye Family Realty, LLC, 218 AD3d at 838-839 [internal quotation marks omitted]; see Sainplice v Tuizer, 244 AD3d 774, 776; Uddin v A.T.A. Constr. Corp., 164 AD3d at 1401). As to the third prong, the plaintiff sufficiently established that Nu-Vision knew or should have known that, but for a mistake, it would have been named as a defendant (see Kolodziejski v North Shore Univ. Hosp., 242 AD3d 971, 972; Lacanfora v Tully, 241 AD3d 667, 670).

Accordingly, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion for leave to serve a second amended complaint adding Nu-Vision as a defendant.

DILLON, J.P., DOWLING, TAYLOR and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court