Wallach v. R&J Construction Corp.

128 A.D.3d 566, 10 N.Y.S.3d 48

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 21, 2015
• Docket: 15185N 109547/09
• Status: Published

Opinion

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered on or about July 9, 2012, which denied plaintiffs motion to amend the summons and complaint to add Dermot Clinton Green (Dermot) as a party defendant under the relation back doctrine (CPLR 203 [c]), unanimously affirmed, without costs.

Plaintiff failed to demonstrate that proposed defendant Dermot was united in interest with defendant, R&J Construction Corp. Dermot and R&J have different defenses to plaintiffs claims (see Raymond v Melohn Props., Inc., 47 AD3d 504, 505 [1st Dept 2008]). For example, R&J’s potential defenses that it was not a statutory agent for purposes of Labor Law § 241 (6) and that it did not control the work that caused plaintiffs injuries are not defenses that Dermot could raise.

Nor does Dermot’s “Wrap-Up” policy render it an indemnitor of R&J and, thus, vicariously liable to R&J. The wrap-up policy was not an indemnification agreement between Dermot and R&J; it was an insurance policy under which both Dermot and R&J were insured.

Given the undisputed facts that the ownership of the property in question is a matter of public record, that plaintiffs counsel had been apprised, by a letter dated July 2008, of the property owner’s identity, and R&J had denied ownership in its answer, we reject plaintiffs contention that her failure to name Dermot as a defendant was a mistake (see e.g. Goldberg v Boatmax:/ /, Inc., 41 AD3d 255 [1st Dept 2007]). Concur— Tom, J.P, Friedman, DeGrasse, Richter and Kapnick, JJ.