Out-of-Possession Landlord and Lessee Are Not “United In Interest” Such that the Lessee Could Be Added to the Complaint After the Statute of Limitations Had Run (Relation-Back Doctrine)

The Third Department determined Supreme Court, in a snow-ice slip and fall case, properly denied plaintiff’s motion to amend the complaint, after the statute of limitations had run, to add the lessee of the property (Albany Medical Center Hospital [AMCH]) as a defendant. The defendant out-of-possession landlord demonstrated, under the terms of the lease, AMCH had the responsibility for maintaining the property in a safe condition. Because the out-of-possession landlord and AMCH were not “united in interest,” the relation-back doctrine did not apply:

… [T]he relation back doctrine permits a plaintiff to amend the complaint to add a defendant even though the statute of limitations had expired at the time of amendment so long as three requirements are met: “(1) both claims must arise out of the same occurrence, (2) [the] defendant and [the new party] were united in interest, and by reason of that relationship can be charged with notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits, and (3) [the new party] knew or should have known that, but for a mistake by [the] plaintiff as to the identity of the proper party, the action would have been brought against it as well ” … . While there is no dispute that the first prong of this test is satisfied under these circumstances, we agree with Supreme Court that defendant and AMCH do not share unity of interest inasmuch as they cannot be said to “stand or fall together” … . “Indeed, unless the original defendant and new party are vicariously liable for the acts of the other[,] there is no unity of interest between them” … . McLaughlin v 22 New Scotland Ave., LLC, 2015 NY Slip Op 07883, 3rd Dept 10-29-15